Hively v. Ivy Tech Community College of Indiana

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 15-1720

KIMBERLY HIVELY,

Plaintiff-Appellant,

v.

IVY TECH COMMUNITY COLLEGE OF INDIANA,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 3:14-cv-1791 — Rudy Lozano, Judge.

____________________

ARGUED NOVEMBER 30, 2016 — DECIDED APRIL 4, 2017

____________________

Before WOOD, Chief Judge, and BAUER, POSNER, FLAUM,

EASTERBROOK, RIPPLE, KANNE, ROVNER, WILLIAMS, SYKES, and

HAMILTON, Circuit Judges.

WOOD, Chief Judge. Title VII of the Civil Rights Act of 1964

makes it unlawful for employers subject to the Act to discrim-

inate on the basis of a person’s “race, color, religion, sex, or

national origin … .” 42 U.S.C. § 2000e-2(a). For many years,

the courts of appeals of this country understood the prohibi-

tion against sex discrimination to exclude discrimination on

2 No. 15-1720

the basis of a person’s sexual orientation. The Supreme Court,

however, has never spoken to that question. In this case, we

have been asked to take a fresh look at our position in light of

developments at the Supreme Court extending over two dec-

ades. We have done so, and we conclude today that discrimi-

nation on the basis of sexual orientation is a form of sex dis-

crimination. We therefore reverse the district court’s judgment

dismissing Kimberly Hively’s suit against Ivy Tech Commu-

nity College and remand for further proceedings.

I

Hively is openly lesbian. She began teaching as a part-

time, adjunct professor at Ivy Tech Community College’s

South Bend campus in 2000. Hoping to improve her lot, she

applied for at least six full-time positions between 2009 and

2014. These efforts were unsuccessful; worse yet, in July 2014

her part-time contract was not renewed. Believing that Ivy

Tech was spurning her because of her sexual orientation, she

filed a pro se charge with the Equal Employment Opportunity

Commission on December 13, 2013. It was short and to the

point:

I have applied for several positions at IVY TECH,

fulltime, in the last 5 years. I believe I am being blocked

from fulltime employment without just cause. I believe

I am being discriminated against based on my sexual

orientation. I believe I have been discriminated against

and that my rights under Title VII of the Civil Rights

Act of 1964 were violated.

After receiving a right-to-sue letter, she filed this action in the

district court (again acting pro se). Ivy Tech responded with a

motion to dismiss for failure to state a claim on which relief

No. 15-1720 3

can be granted. It argued that sexual orientation is not a pro-

tected class under Title VII or 42 U.S.C. § 1981 (which we will

disregard for the remainder of this opinion). Relying on a line

of this court’s cases exemplified by Hamner v. St. Vincent Hosp.

and Health Care Ctr., Inc., 224 F.3d 701 (7th Cir. 2000), the dis-

trict court granted Ivy Tech’s motion and dismissed Hively’s

case with prejudice.

Now represented by the Lambda Legal Defense & Educa-

tion Fund, Hively has appealed to this court. After an exhaus-

tive exploration of the law governing claims involving dis-

crimination based on sexual orientation, the panel affirmed.

Hively v. Ivy Tech Cmty. Coll., 830 F.3d 698 (7th Cir. 2016). It

began its analysis by noting that the idea that discrimination

based on sexual orientation is somehow distinct from sex dis-

crimination originated with dicta in Ulane v. Eastern Airlines,

Inc., 742 F.2d 1081 (7th Cir. 1984). Ulane stated (as if this re-

solved matters) that Title VII’s prohibition against sex dis-

crimination “implies that it is unlawful to discriminate

against women because they are women and against men be-

cause they are men.” Id. at 1085. From this truism, we deduced

that “Congress had nothing more than the traditional notion

of ‘sex’ in mind when it voted to outlaw sex discrimination …

.” Doe v. City of Belleville, Ill., 119 F.3d 563, 572 (7th Cir. 1997),

cert. granted, judgment vacated sub nom. City of Belleville v. Doe,

523 U.S. 1001 (1998), abrogated by Oncale v. Sundowner Offshore

Servs., Inc., 523 U.S. 75 (1998).

Later cases in this court, including Hamm v. Weyauwega

Milk Prods., 332 F.3d 1058 (7th Cir. 2003), Hamner, and Spear-

man v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000), have

accepted this as settled law. Almost all of our sister circuits

have understood the law in the same way. See, e.g., Higgins v.

4 No. 15-1720

New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999);

Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005);

Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 290 (3d Cir. 2009);

Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 143 (4th Cir.

1996); Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979);

Kalich v. AT&T Mobility, LLC, 679 F.3d 464, 471 (6th Cir. 2012);

Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir.

1989); Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th

Cir. 2005); Fredette v. BVP Mgmt. Assocs., 112 F.3d 1503, 1510

(11th Cir. 1997). A panel of the Eleventh Circuit, recognizing

that it was bound by the Fifth Circuit’s precedent in Blum, 597

F.2d 936, recently reaffirmed (by a 2–1 vote) that it could not

recognize sexual orientation discrimination claims under Ti-

tle VII. Evans v. Georgia Reg’l Hosp., No. 15-15234, 2017 WL

943925, at *5–6 (11th Cir. Mar. 10, 2017). On the other hand,

the Second Circuit recently found that an openly gay male

plaintiff pleaded a claim of gender stereotyping that was suf-

ficient to survive dismissal. The court observed that one panel

lacked the power to reconsider the court’s earlier decision

holding that sexual orientation discrimination claims were

not cognizable under Title VII. Christiansen v. Omnicom Group,

Inc., No. 16-748 (2d Cir. Mar. 27, 2017) (per curiam). Nonethe-

less, two of the three judges, relying on many of the same ar-

guments presented here, noted in concurrence that they

thought their court ought to consider revisiting that precedent

in an appropriate case. Id. at 2 (Katzmann, J., concurring). No-

table in its absence from the debate over the proper interpre-

tation of the scope of Title VII’s ban on sex discrimination is

the United States Supreme Court.

That is not because the Supreme Court has left this subject

entirely to the side. To the contrary, as the panel recognized,

over the years the Court has issued several opinions that are

No. 15-1720 5

relevant to the issue before us. Key among those decisions are

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). Price Water-

house held that the practice of gender stereotyping falls within

Title VII’s prohibition against sex discrimination, and Oncale

clarified that it makes no difference if the sex of the harasser

is (or is not) the same as the sex of the victim. Our panel

frankly acknowledged how difficult it is “to extricate the gen-

der nonconformity claims from the sexual orientation

claims.” 830 F.3d at 709. That effort, it commented, has led to

a “confused hodge-podge of cases.” Id. at 711. It also noted

that “all gay, lesbian and bisexual persons fail to comply with

the sine qua non of gender stereotypes—that all men should

form intimate relationships only with women, and all women

should form intimate relationships only with men.” Id. Espe-

cially since the Supreme Court’s recognition that the Due Pro-

cess and Equal Protection Clauses of the Constitution protect

the right of same-sex couples to marry, Obergefell v. Hodges,

135 S.Ct. 2584 (2015), bizarre results ensue from the current

regime. As the panel noted, it creates “a paradoxical legal

landscape in which a person can be married on Saturday and

then fired on Monday for just that act.” 830 F.3d at 714. Finally,

the panel highlighted the sharp tension between a rule that

fails to recognize that discrimination on the basis of the sex

with whom a person associates is a form of sex discrimina-

tion, and the rule, recognized since Loving v. Virginia, 388 U.S.

1 (1967), that discrimination on the basis of the race with

whom a person associates is a form of racial discrimination.

Despite all these problems, the panel correctly noted that

it was bound by this court’s precedents, to which we referred

earlier. It thought that the handwriting signaling their demise

6 No. 15-1720

might be on the wall, but it did not feel empowered to trans-

late that message into a holding. “Until the writing comes in

the form of a Supreme Court opinion or new legislation,” 830

F.3d at 718, it felt bound to adhere to our earlier decisions. In

light of the importance of the issue, and recognizing the

power of the full court to overrule earlier decisions and to

bring our law into conformity with the Supreme Court’s

teachings, a majority of the judges in regular active service

voted to rehear this case en banc.

II

A

The question before us is not whether this court can, or

should, “amend” Title VII to add a new protected category to

the familiar list of “race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e-2(a). Obviously that lies beyond our

power. We must decide instead what it means to discriminate

on the basis of sex, and in particular, whether actions taken

on the basis of sexual orientation are a subset of actions taken

on the basis of sex.1 This is a pure question of statutory inter-

pretation and thus well within the judiciary’s competence.

Much ink has been spilled about the proper way to go

about the task of statutory interpretation. One can stick, to the

greatest extent possible, to the language enacted by the legis-

lature; one could consult the legislative history that led up to

1 For present purposes, we have no need to decide whether discrimi-

nation on the basis of “gender” is for legal purposes the same as discrim-

ination on the basis of “sex,” which is the statutory term. Many courts,

including the Supreme Court, appear to have used “sex” and “gender”

synonymously. Should a case arise in which the facts require us to exam-

ine the differences (if any) between the terms, we will do so then.

No. 15-1720 7

the bill that became law; one could examine later actions of

the legislature (i.e. efforts to amend the law and later enact-

ments) for whatever light they may shed; and one could use

a combination of these methods. See, e.g., William Eskridge,

Jr., & Philip Frickey, Legislation and Statutory Interpretation (2d

ed. 2007); Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts (2012); Adrian Vermeule, Judging

Under Uncertainty: An Institutional Theory of Legal Interpretation

(2006); Victoria F. Nourse, A Decision Theory of Statutory Inter-

pretation: Legislative History by the Rules, 122 Yale L.J. 70 (2012);

Cass R. Sunstein, Interpreting Statutes in the Regulatory State,

103 Harv. L. Rev. 407 (1989).

Few people would insist that there is a need to delve into

secondary sources if the statute is plain on its face. Even if it

is not pellucid, the best source for disambiguation is the

broader context of the statute that the legislature—in this case,

Congress—passed. This is uncontroversial when the reading

seems consistent with the conventional wisdom about the

reach of the law. It becomes somewhat harder to swallow if

the language reveals suspected or actual unintended conse-

quences. It is then that some have thought that legislative his-

tory should be used to block a particular reading of a statute.

Legislative history, however, is notoriously malleable. Even

worse is the temptation to try to divine the significance of un-

successful legislative efforts to change the law. Those failures

can mean almost anything, ranging from the lack of necessity

for a proposed change because the law already accomplishes

the desired goal, to the undesirability of the change because a

majority of the legislature is happy with the way the courts

are currently interpreting the law, to the irrelevance of the

non-enactment, when it is attributable to nothing more than

8 No. 15-1720

legislative logrolling or gridlock that had nothing to do with

its merits.

Ivy Tech sets great store on the fact that Congress has fre-

quently considered amending Title VII to add the words “sex-

ual orientation” to the list of prohibited characteristics, yet it

has never done so. Many of our sister circuits have also noted

this fact. In our view, however, it is simply too difficult to

draw a reliable inference from these truncated legislative ini-

tiatives to rest our opinion on them. The goalposts have been

moving over the years, as the Supreme Court has shed more

light on the scope of the language that already is in the statute:

no sex discrimination.

The dissent makes much of the fact that Congresses acting

more than thirty years after the passage of Title VII made use

of the term “sexual orientation” to prohibit discrimination or

violence on that basis in statutes such as the Violence Against

Women Act and the federal Hate Crimes Act. But this gets us

no closer to answering the question at hand, for Congress may

certainly choose to use both a belt and suspenders to achieve

its objectives, and the fact that “sex” and “sexual orientation”

discrimination may overlap in later statutes is of no help in

determining whether sexual orientation discrimination is dis-

crimination on the basis of sex for the purposes of Title VII.

See, e.g., McEvoy v. IEI Barge Servs., Inc., 622 F.3d 671, 677 (7th

Cir. 2010) (“Congress may choose a belt-and-suspenders ap-

proach to promote its policy objectives… .”).

Moreover, the agency most closely associated with this

law, the Equal Employment Opportunity Commission, in

2015 announced that it now takes the position that Title VII’s

prohibition against sex discrimination encompasses discrimi-

nation on the basis of sexual orientation. See Baldwin v. Foxx,

No. 15-1720 9

EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 15,

2015). Our point here is not that we have a duty to defer to the

EEOC’s position. We assume for present purposes that no

such duty exists. But the Commission’s position may have

caused some in Congress to think that legislation is needed to

carve sexual orientation out of the statute, not to put it in. In

the end, we have no idea what inference to draw from con-

gressional inaction or later enactments, because there is no

way of knowing what explains each individual member’s

votes, much less what explains the failure of the body as a

whole to change this 1964 statute.

Our interpretive task is guided instead by the Supreme

Court’s approach in the closely related case of Oncale, where

it had this to say as it addressed the question whether Title

VII covers sexual harassment inflicted by a man on a male vic-

tim:

We see no justification in the statutory language or

our precedents for a categorical rule excluding same-

sex harassment claims from the coverage of Title VII.

As some courts have observed, male-on-male sexual

harassment in the workplace was assuredly not the

principal evil Congress was concerned with when it

enacted Title VII. But statutory prohibitions often go

beyond the principal evil to cover reasonably compa-

rable evils, and it is ultimately the provisions of our

laws rather than the principal concerns of our legisla-

tors by which we are governed. Title VII prohibits “dis-

criminat[ion] … because of … sex” in the “terms” or

“conditions” of employment. Our holding that this in-

10 No. 15-1720

cludes sexual harassment must extend to sexual har-

assment of any kind that meets the statutory require-

ments.

523 U.S. at 79–80. The Court could not have been clearer: the

fact that the enacting Congress may not have anticipated a

particular application of the law cannot stand in the way of

the provisions of the law that are on the books.

It is therefore neither here nor there that the Congress that

enacted the Civil Rights Act in 1964 and chose to include sex

as a prohibited basis for employment discrimination (no mat-

ter why it did so) may not have realized or understood the full

scope of the words it chose. Indeed, in the years since 1964,

Title VII has been understood to cover far more than the sim-

ple decision of an employer not to hire a woman for Job A, or

a man for Job B. The Supreme Court has held that the prohi-

bition against sex discrimination reaches sexual harassment

in the workplace, see Meritor Sav. Bank, FSB v. Vinson, 477 U.S.

57 (1986), including same-sex workplace harassment, see On-

cale; it reaches discrimination based on actuarial assumptions

about a person’s longevity, see City of Los Angeles, Dep’t of Wa-

ter and Power v. Manhart, 435 U.S. 702 (1978); and it reaches

discrimination based on a person’s failure to conform to a cer-

tain set of gender stereotypes, see Hopkins. It is quite possible

that these interpretations may also have surprised some who

served in the 88th Congress. Nevertheless, experience with

the law has led the Supreme Court to recognize that each of

these examples is a covered form of sex discrimination.

B

Hively offers two approaches in support of her contention

that “sex discrimination” includes discrimination on the basis

No. 15-1720 11

of sexual orientation. The first relies on the tried-and-true

comparative method in which we attempt to isolate the sig-

nificance of the plaintiff’s sex to the employer’s decision: has

she described a situation in which, holding all other things

constant and changing only her sex, she would have been

treated the same way? The second relies on the Loving v. Vir-

ginia, 388 U.S. 1 (1967), line of cases, which she argues protect

her right to associate intimately with a person of the same sex.

Although the analysis differs somewhat, both avenues end up

in the same place: sex discrimination.

1

It is critical, in applying the comparative method, to be

sure that only the variable of the plaintiff’s sex is allowed to

change. The fundamental question is not whether a lesbian is

being treated better or worse than gay men, bisexuals, or

transsexuals, because such a comparison shifts too many

pieces at once. Framing the question that way swaps the crit-

ical characteristic (here, sex) for both the complainant and the

comparator and thus obscures the key point—whether the

complainant’s protected characteristic played a role in the ad-

verse employment decision. The counterfactual we must use

is a situation in which Hively is a man, but everything else

stays the same: in particular, the sex or gender of the partner.

Hively alleges that if she had been a man married to a

woman (or living with a woman, or dating a woman) and eve-

rything else had stayed the same, Ivy Tech would not have

refused to promote her and would not have fired her. (We take

the facts in the light most favorable to her, because we are here

on a Rule 12(b)(6) dismissal; naturally nothing we say will

prevent Ivy Tech from contesting these points in later pro-

ceedings.) This describes paradigmatic sex discrimination. To

12 No. 15-1720

use the phrase from Ulane, Ivy Tech is disadvantaging her be-

cause she is a woman. Nothing in the complaint hints that Ivy

Tech has an anti-marriage policy that extends to heterosexual

relationships, or for that matter even an anti-partnership pol-

icy that is gender-neutral.

Viewed through the lens of the gender non-conformity

line of cases, Hively represents the ultimate case of failure to

conform to the female stereotype (at least as understood in a

place such as modern America, which views heterosexuality

as the norm and other forms of sexuality as exceptional): she

is not heterosexual. Our panel described the line between a

gender nonconformity claim and one based on sexual orien-

tation as gossamer-thin; we conclude that it does not exist at

all. Hively’s claim is no different from the claims brought by

women who were rejected for jobs in traditionally male work-

places, such as fire departments, construction, and policing.

The employers in those cases were policing the boundaries of

what jobs or behaviors they found acceptable for a woman (or

in some cases, for a man).

This was the critical point that the Supreme Court was

making in Hopkins. The four justices in the plurality and the

two justices concurring in the judgment recognized that Hop-

kins had alleged that her employer was discriminating only

against women who behaved in what the employer viewed as

too “masculine” a way—no makeup, no jewelry, no fashion

sense.2 And even before Hopkins, courts had found sex dis-

2 The dissent correctly points out that Hopkins was a plurality opinion,

but that fact is of no moment in understanding what we are to take from

the plurality’s discussion of sex stereotyping. On the critical issue—

whether the conduct about which Hopkins complained could support a

No. 15-1720 13

crimination in situations where women were resisting stereo-

typical roles. As far back as 1971, the Supreme Court held that

Title VII does not permit an employer to refuse to hire women

with pre-school-age children, but not men. Phillips v. Martin

Marietta Corp., 400 U.S. 542 (1971). Around the same time, this

court held that Title VII “strike[s] at the entire spectrum of

disparate treatment of men and women resulting from sex

stereotypes,” Sprogis v. United Air Lines, Inc., 444 F.2d 1194,

1198 (7th Cir. 1971), and struck down a rule requiring only the

female employees to be unmarried. In both those instances,

the employer’s rule did not affect every woman in the work-

force. Just so here: a policy that discriminates on the basis of

sexual orientation does not affect every woman, or every man,

but it is based on assumptions about the proper behavior for

someone of a given sex.3 The discriminatory behavior does

finding of sex discrimination for purposes of Title VII—at least six justices

were in agreement that the answer was yes. Justice Brennan’s opinion for

the four-person plurality was clear: “In the specific context of sex stereo-

typing, an employer who acts on the basis of a belief that a woman cannot

be aggressive, or that she must not be, has acted on the basis of gender.”

490 U.S. at 250. Justice White, concurring in the judgment, stated that he

agreed that an unlawful motive was a substantial factor in the adverse

employment action Hopkins suffered. Id. at 259. Justice O’Connor, also

concurring in the judgment, “agree[d] with the plurality that, on the facts

presented in this case, the burden of persuasion should shift to the em-

ployer to demonstrate by a preponderance of the evidence that it would

have reached the same decision concerning Ann Hopkins’ candidacy ab-

sent consideration of her gender.” Id. at 261. Justice Kennedy’s dissenting

opinion did not need to dwell on this point, because he found that Hop-

kins could not prove causation.

3 The dissent questions in its conclusion what a jury ought to do in the

hypothetical case in which Ivy Tech hired six heterosexual women for the

full-time positions. But, as we note, the Supreme Court has made it clear

that a policy need not affect every woman to constitute sex discrimination.

14 No. 15-1720

not exist without taking the victim’s biological sex (either as

observed at birth or as modified, in the case of transsexuals)

into account. Any discomfort, disapproval, or job decision

based on the fact that the complainant—woman or man—

dresses differently, speaks differently, or dates or marries a

same-sex partner, is a reaction purely and simply based on

sex. That means that it falls within Title VII’s prohibition

against sex discrimination, if it affects employment in one of

the specified ways.

The virtue of looking at comparators and paying heed to

gender non-conformity is that this process sheds light on the

interpretive question raised by Hively’s case: is sexual-orien-

tation discrimination a form of sex discrimination, given the

way in which the Supreme Court has interpreted the word

“sex” in the statute? The dissent criticizes us for not trying to

rule out sexual-orientation discrimination by controlling for it

in our comparator example and for not placing any weight on

the fact that if someone had asked Ivy Tech what its reasons

were at the time of the discriminatory conduct, it probably

would have said “sexual orientation,” not “sex.” We assume

that this is true, but this thought experiment does not answer

the question before us—instead, it begs that question. It com-

mits the logical fallacy of assuming the conclusion it sets out

to prove. It makes no sense to control for or rule out discrim-

ination on the basis of sexual orientation if the question before

us is whether that type of discrimination is nothing more or

less than a form of sex discrimination. Repeating that the two

What if Hively had been heterosexual, too, but did not get the job because

she failed to wear high heels, lipstick, or perfume like the other candi-

dates? A failure to discriminate against all women does not mean that an

employer has not discriminated against one woman on the basis of sex.

No. 15-1720 15

are different, as the dissent does at numerous points, also

does not advance the analysis.

2

As we noted earlier, Hively also has argued that action

based on sexual orientation is sex discrimination under the

associational theory. It is now accepted that a person who is

discriminated against because of the protected characteristic

of one with whom she associates is actually being disadvan-

taged because of her own traits. This line of cases began with

Loving, in which the Supreme Court held that “restricting the

freedom to marry solely because of racial classifications vio-

lates the central meaning of the Equal Protection Clause.”

388 U.S. at 12. The Court rejected the argument that miscege-

nation statutes do not violate equal protection because they

“punish equally both the white and the Negro participants in

an interracial marriage.” Id. at 8. When dealing with a statute

containing racial classifications, it wrote, “the fact of equal ap-

plication does not immunize the statute from the very heavy

burden of justification” required by the Fourteenth Amend-

ment for lines drawn by race. Id. at 9.

In effect, both parties to the interracial marriage were be-

ing denied important rights by the state solely on the basis of

their race. This point by now has been recognized for many

years. For example, in Parr v. Woodmen of the World Life Ins. Co.,

791 F.2d 888 (11th Cir. 1986), the Eleventh Circuit considered

a case in which a white man (Parr) married to an African-

American woman was denied employment by an insurance

company because of his interracial marriage. He sued under

Title VII, but the district court dismissed the complaint on the

ground that it failed to describe discrimination on the basis of

race. The court of appeals reversed. It held that “[w]here a

16 No. 15-1720

plaintiff claims discrimination based upon an interracial mar-

riage or association, he alleges, by definition, that he has been

discriminated against because of his race.” Id. at 892. It also

rejected the employer’s somewhat bizarre argument that,

given the allegation that it discriminated against all African-

Americans, Parr could not show that it would have made a

difference if he also had been African-American. Id. The court

contented itself with describing that as a lawsuit for another

day.

The Second Circuit took the same position two decades

later in Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008), in

which a white former employee of the college sued, alleging

that it fired him from his job as associate coach of the men’s

basketball team because he was married to an African-Amer-

ican woman. The court held “that an employer may violate

Title VII if it takes action against an employee because of the

employee’s association with a person of another race.” Id. at

132. It stressed that the plaintiff’s case did not depend on

third-party injury. To the contrary, it held, “where an em-

ployee is subjected to adverse action because an employer dis-

approves of interracial association, the employee suffers dis-

crimination because of the employee’s own race.” Id. at 139.

Had the plaintiff been African-American, the question

whether race discrimination tainted the employer’s action

would have depended on different facts.

We have not faced exactly the same situation as that in Parr

and Holcomb, but we have come close. In Drake v. Minn. Min-

ing & Mfg. Co., 134 F.3d 878 (7th Cir. 1998), we encountered a

case in which white employees brought an action under Title

VII on the theory that they were being subjected to a hostile

working environment and ultimately discharged because of

No. 15-1720 17

their association with African-American co-workers. Because

the defendant conceded that an employee can bring an asso-

ciational race discrimination claim under Title VII, we had no

need to say much on that point. Instead, we assumed for the

sake of argument that an associational race discrimination

claim is possible, and that the key inquiries are whether the

employee has experienced discrimination and whether that

discrimination was because of race. Id. at 884. This is con-

sistent with Holcomb.

The fact that we now accept this analysis tells us nothing,

however, about the world in 1967, when Loving reached the

Supreme Court. The dissent implies that we are adopting an

anachronistic view of Title VII, enacted just three years before

Loving, but it is the dissent’s understanding of Loving and the

miscegenation laws that is an anachronism. Thanks to Loving

and the later cases we mentioned, society understands now

that such laws are (and always were) inherently racist. But as

of 1967 (and thus as of 1964), Virginia and 15 other states had

anti-miscegenation laws on the books. Loving, 388 U.S. at 6.

These laws were long defended and understood as non-dis-

criminatory because the legal obstacle affected both partners.

The Court in Loving recognized that equal application of a law

that prohibited conduct only between members of different

races did not save it. Changing the race of one partner made

a difference in determining the legality of the conduct, and so

the law rested on “distinctions drawn according to race,”

which were unjustifiable and racially discriminatory. 4 Loving,

4 The dissent seems to imply that the discrimination in Loving was

problematic because the miscegenation laws were designed to maintain

the supremacy of one race—and by extension that sexual orientation dis-

crimination is not a problem because it is not designed to maintain the

18 No. 15-1720

388 U.S. at 11. So too, here. If we were to change the sex of one

partner in a lesbian relationship, the outcome would be dif-

ferent. This reveals that the discrimination rests on distinc-

tions drawn according to sex.

The dissent would instead have us compare the treatment

of men who are attracted to members of the male sex with the

treatment of women who are attracted to members of the fe-

male sex, and ask whether an employer treats the men differ-

ently from the women. But even setting to one side the logical

fallacy involved, Loving shows why this fails. In the context of

interracial relationships, we could just as easily hold constant

a variable such as “sexual or romantic attraction to persons of

a different race” and ask whether an employer treated per-

sons of different races who shared that propensity the same.

That is precisely the rule that Loving rejected, and so too must

we, in the context of sexual associations.

The fact that Loving, Parr, and Holcomb deal with racial as-

sociations, as opposed to those based on color, national origin,

religion, or sex, is of no moment. The text of the statute draws

no distinction, for this purpose, among the different varieties

of discrimination it addresses—a fact recognized by the Hop-

kins plurality. See 490 U.S. at 244 n.9. This means that to the

extent that the statute prohibits discrimination on the basis of

the race of someone with whom the plaintiff associates, it also

prohibits discrimination on the basis of the national origin, or

the color, or the religion, or (as relevant here) the sex of the

supremacy of one sex. But while this was certainly a repugnant feature of

Virginia’s law, it was not the basis of the holding in Loving. Rather, the

Court found the racial classifications to be at odds with the Constitution,

“even assuming an even-handed state purpose to protect the ‘integrity’ of

all races.” Loving, 388 U.S. at 11 n.11.

No. 15-1720 19

associate. No matter which category is involved, the essence

of the claim is that the plaintiff would not be suffering the ad-

verse action had his or her sex, race, color, national origin, or

religion been different.

III

Today’s decision must be understood against the backdrop

of the Supreme Court’s decisions, not only in the field of em-

ployment discrimination, but also in the area of broader dis-

crimination on the basis of sexual orientation. We already

have discussed the employment cases, especially Hopkins and

Oncale. The latter line of cases began with Romer v. Evans, 517

U.S. 620 (1996), in which the Court held that a provision of the

Colorado Constitution forbidding any organ of government

in the state from taking action designed to protect “homosex-

ual, lesbian, or bisexual” persons, id. at 624, violated the fed-

eral Equal Protection Clause. Romer was followed by Lawrence

v. Texas, 539 U.S. 558 (2003), in which the Court found that a

Texas statute criminalizing homosexual intimacy between

consenting adults violated the liberty provision of the Due

Process Clause. Next came United States v. Windsor, 133 S.Ct.

2675 (2013), which addressed the constitutionality of the part

of the Defense of Marriage Act (DOMA) that excluded a

same-sex partner from the definition of “spouse” in other fed-

eral statutes. The Court held that this part of DOMA “vio-

late[d] basic due process and equal protection principles ap-

plicable to the Federal Government.” Id. at 2693. Finally, the

Court’s decision in Obergefell, supra, held that the right to

marry is a fundamental liberty right, protected by the Due

Process and Equal Protection Clauses of the Fourteenth

Amendment. 135 S.Ct. at 2604. The Court wrote that “[i]t is

now clear that the challenged laws burden the liberty of same-

20 No. 15-1720

sex couples, and it must be further acknowledged that they

abridge central precepts of equality.” Id.

It would require considerable calisthenics to remove the

“sex” from “sexual orientation.” The effort to do so has led to

confusing and contradictory results, as our panel opinion il-

lustrated so well.5 The EEOC concluded, in its Baldwin deci-

sion, that such an effort cannot be reconciled with the straight-

forward language of Title VII. Many district courts have come

to the same conclusion. See, e.g., Boutillier v. Hartford Pub. Sch.,

No. 3:13-CV-01303-WWE, 2016 WL 6818348 (D. Conn. Nov.

17, 2016); U.S. Equal Emp’t Opportunity Comm’n v. Scott Med.

Ctr., P.C., No. CV 16-225, 2016 WL 6569233 (W.D. Pa. Nov. 4,

2016); Winstead v. Lafayette Cnty. Bd. of Cnty. Comm’rs, No.

1:16CV00054-MW-GRJ, 2016 WL 3440601 (N.D. Fla. June 20,

5The dissent contends that a fluent speaker of the English language

would understand that “sex” does not include the concept of “sexual ori-

entation,” and this ought to demonstrate that the two are easily distin-

guishable and not the same. But this again assumes the answer to the ques-

tion before us: how to interpret the statute in light of the guidance the Su-

preme Court has provided. The dissent is correct that the term “sexual

orientation” was not defined in the dictionary around the time of Title

VII’s enactment, but neither was the term “sexual harassment”—a concept

that, although it can be distinguished from “sex,” has at least since 1986

been included by the Supreme Court under the umbrella of sex discrimi-

nation. See WEBSTER’S NEW COLLEGIATE DICTIONARY (7th ed. 1963) (lack-

ing an entry for “sexual harassment” or “sexual orientation”); THE

AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (1st ed. 1969)

(same). The dissent postulates that it is implausible that a reasonable per-

son in 1964 could have understood discrimination based on sex to include

sexual orientation discrimination. But that reasonable person similarly

may not have understood it to include sexual harassment (and, by exten-

sion, not male-on-male sexual harassment). As Oncale said, we are con-

cerned with the provisions of the law, not the principal concerns of those

who wrote it. 523 U.S. at 80. The approach we have taken does just that.

No. 15-1720 21

2016); Isaacs v. Felder Servs., LLC, 143 F. Supp. 3d 1190 (M.D.

Ala. 2015); see also Videckis v. Pepperdine Univ., 150 F. Supp. 3d

1151 (C.D. Cal. 2015) (Title IX case, applying Title VII princi-

ples and Baldwin). Many other courts have found that gender-

identity claims are cognizable under Title VII. See, e.g., Rosa v.

Park W. Bank & Tr. Co., 214 F.3d 213, 215–16 (1st Cir. 2000)

(claim for sex discrimination under Equal Credit Opportunity

Act, analogizing to Title VII); Schwenk v. Hartford, 204 F.3d

1187, 1201–02 (9th Cir. 2000) (relying on Title VII cases to con-

clude that violence against a transsexual was violence because

of gender under the Gender Motivated Violence Act); Barnes

v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005); Smith v. City

of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004); Fabian v. Hosp. of

Cent. Conn., 172 F. Supp. 3d 509 (D. Conn. 2016); Schroer v. Bil-

lington, 577 F. Supp. 2d 293, 308 (D.D.C. 2008).

This is not to say that authority to the contrary does not

exist. As we acknowledged at the outset of this opinion, it

does. But this court sits en banc to consider what the correct

rule of law is now in light of the Supreme Court’s authorita-

tive interpretations, not what someone thought it meant one,

ten, or twenty years ago.6 The logic of the Supreme Court’s

6 The dissent criticizes us for this approach, but we find nothing sur-

prising in the fact that lower courts may have been wrong for many years

in how they understood the rule of law supplied by a statute or the Con-

stitution. Exactly this has happened before. For example, in Central Bank

of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994),

the Supreme Court disapproved a rule of statutory interpretation that all

eleven regional courts of appeals had followed—most for over three dec-

ades. When the Court decided Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S.

560 (2012) (deciding that the provision for compensating interpreters in 28

U.S.C. § 1920(6) does not include costs for document translation), it re-

jected the views of at least six circuits with regard to the proper reading of

the statute. 556 U.S. at 577 (Ginsburg, J., dissenting). See also Milner v.

22 No. 15-1720

decisions, as well as the common-sense reality that it is actu-

ally impossible to discriminate on the basis of sexual orienta-

tion without discriminating on the basis of sex, persuade us

that the time has come to overrule our previous cases that

have endeavored to find and observe that line.

For the sake of comprehensiveness, we note that Ivy Tech

presents two technical reasons why it thinks this case should

not be heard: waiver and sovereign immunity. Neither one

persuades us. Though Hively (acting pro se) did not advance

the same arguments to the district court, that court would

have been powerless to overturn precedent. We, in contrast,

are proceeding on a de novo basis, and we have the discretion

to address issues for the first time on appeal. Kaczmarek v. Red-

nour, 627 F.3d 586, 595 (7th Cir. 2010). We often exercise that

discretion to entertain arguments that turn on pure issues of

law. See, e.g., Amcast Indus. Corp. v. Detrex Corp., 2 F.3d 746, 750

(7th Cir. 1993) (concluding “[t]here will be no better time to

resolve the issue than now.”). There was no waiver. As for sov-

ereign immunity, Ivy Tech acknowledges that federal courts

have long concluded that Congress validly abrogated the

Dep’t of the Navy, 562 U.S. 562, 585 (2011) (Breyer, J., dissenting) (noting

that the Court’s decision rejected the interpretation of Exemption 2 to the

Freedom of Information Act that had been consistently followed or favor-

ably cited by every court of appeals to have considered the matter over a

30-year period). It would be more controversial to assert that this is one of

the rare statutes left for common-law development, as our concurring col-

league does. In any event, that common-law development, both for the

antitrust laws and any other candidates, is the responsibility of the Su-

preme Court. See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (recognizing

that only the Supreme Court could jettison the per se rule against maxi-

mum pricefixing). All we can do is what we have done here: apply the

relevant Supreme Court decisions to the statute to the best of our ability.

No. 15-1720 23

state’s immunity with respect to intentional discrimination

claims under Title VII. Fitzpatrick v. Bitzer, 427 U.S. 445, 456

(1976); Nanda v. Bd. of Trs. of Univ. of Ill., 303 F.3d 817, 831 (7th

Cir. 2002). There is no merit whatsoever to that point.

We close by noting that we have decided only the issue put

before us. Additional complications can be saved for another

day, when they are actually involved in the case. Ivy Tech did

not contend, for example, that it was a religious institution

and the positions it denied to Hively related to a religious mis-

sion.7 See 42 U.S.C. § 2000e-1(a). Nor have we had any occa-

sion to consider the meaning of discrimination in the context

of the provision of social or public services. We hold only that

a person who alleges that she experienced employment dis-

crimination on the basis of her sexual orientation has put forth

a case of sex discrimination for Title VII purposes. It was

therefore wrong to dismiss Hively’s complaint for failure to

state a claim. The judgment of the district court is REVERSED

and the case is REMANDED for further proceedings.

7 Indeed, in contrast to cases in which a religious employer may be

exempted from Title VII liability because they have a bona fide need to

discriminate on the basis of a protected characteristic, we note that Ivy

Tech’s position does not seem to reflect any fundamental desire to be per-

mitted to engage in discrimination on the basis of sexual orientation. To

the contrary, Ivy Tech maintains that it has its own internal policy prohib-

iting such discrimination. It could repeal that policy tomorrow, however,

and so we will not look behind its decision to contest Hively’s claim.

24 No. 15-1720

POSNER, Circuit Judge, concurring. I agree that we should

reverse, and I join the majority opinion, but I wish to explore

an alternative approach that may be more straightforward.

It is helpful to note at the outset that the interpretation of

statutes comes in three flavors. The first and most conven-

tional is the extraction of the original meaning of the stat-

ute—the meaning intended by the legislators—and corre-

sponds to interpretation in ordinary discourse. Knowing

English I can usually determine swiftly and straightforward-

ly the meaning of a statement, oral or written, made to me in

English (not always, because the statement may be garbled,

grammatically intricate or inaccurate, obtuse, or complex

beyond my ability to understand).

The second form of interpretation, illustrated by the

commonplace local ordinance which commands “no vehicles

in the park,” is interpretation by unexpressed intent, where-

by we understand that although an ambulance is a vehicle,

the ordinance was not intended to include ambulances

among the “vehicles” forbidden to enter the park. This mode

of interpretation received its definitive statement in Black-

stone’s analysis of the medieval law of Bologna which stated

that “whoever drew blood in the streets should be punished

with the utmost severity.” William Blackstone, Commentaries

on the Laws of England *60 (1765). Blackstone asked whether

the law should have been interpreted to make punishable a

surgeon “who opened the vein of a person that fell down in

the street with a fit.” (Bleeding a sick or injured person was a

common form of medical treatment in those days.) Black-

stone thought not, remarking that as to “the effects and con-

sequence, or the spirit and reason of the law … the rule is,

where words bear either none, or a very absurd signification,

No. 15-1720 25

if literally understood, we must a little deviate from the re-

ceived sense of them.” Id. *59–60. The law didn’t mention

surgeons, but Blackstone thought it obvious that the legisla-

tors, who must have known something about the medical

activities of surgeons, had not intended the law to apply to

them. And so it is with ambulances in parks that prohibit

vehicles.

Finally and most controversially, interpretation can mean

giving a fresh meaning to a statement (which can be a state-

ment found in a constitutional or statutory text)—a meaning

that infuses the statement with vitality and significance to-

day. An example of this last form of interpretation—the

form that in my mind is most clearly applicable to the pre-

sent case—is the Sherman Antitrust Act, enacted in 1890,

long before there was a sophisticated understanding of the

economics of monopoly and competition. Times have

changed; and for more than thirty years the Act has been in-

terpreted in conformity to the modern, not the nineteenth-

century, understanding of the relevant economics. The Act

has thus been updated by, or in the name of, judicial inter-

pretation—the form of interpretation that consists of making

old law satisfy modern needs and understandings. And a

common form of interpretation it is, despite its flouting

“original meaning.” Statutes and constitutional provisions

frequently are interpreted on the basis of present need and

present understanding rather than original meaning—

constitutional provisions even more frequently, because

most of them are older than most statutes.

Title VII of the Civil Rights Act of 1964, now more than

half a century old, invites an interpretation that will update

it to the present, a present that differs markedly from the era

26 No. 15-1720

in which the Act was enacted. But I need to emphasize that

this third form of interpretation—call it judicial interpretive

updating—presupposes a lengthy interval between enact-

ment and (re)interpretation. A statute when passed has an

understood meaning; it takes years, often many years, for a

shift in the political and cultural environment to change the

understanding of the statute.

Hively, the plaintiff, claims that because she’s a lesbian

her employer declined to either promote her to full-time

employment or renew her part-time employment contract.

She seeks redress on the basis of the provision of Title VII

that forbids an employer “to fail or refuse to hire[,] or to dis-

charge[,] any individual, or otherwise to discriminate

against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of

such individual’s … sex … .” 42 U.S.C. § 2000e-2(a)(1).

The argument that firing a woman on account of her be-

ing a lesbian does not violate Title VII is that the term “sex”

in the statute, when enacted in 1964, undoubtedly meant

“man or woman,” and so at the time people would have

thought that a woman who was fired for being a lesbian was

not being fired for being a woman unless her employer

would not have fired on grounds of homosexuality a man he

knew to be homosexual; for in that event the only difference

between the two would be the gender of the one he fired.

Title VII does not mention discrimination on the basis of

sexual orientation, and so an explanation is needed for how

53 years later the meaning of the statute has changed and the

word “sex” in it now connotes both gender and sexual orien-

tation.

No. 15-1720 27

It is well-nigh certain that homosexuality, male or female,

did not figure in the minds of the legislators who enacted

Title VII. I had graduated from law school two years before

the law was enacted. Had I been asked then whether I had

ever met a male homosexual, I would have answered: prob-

ably not; had I been asked whether I had ever met a lesbian I

would have answered “only in the pages of À la recherche du

temps perdu.” Homosexuality was almost invisible in the

1960s. It became visible in the 1980s as a consequence of the

AIDS epidemic; today it is regarded by a large swathe of the

American population as normal. But what is certain is that

the word “sex” in Title VII had no immediate reference to

homosexuality; many years would elapse before it could be

understood to include homosexuality.

A diehard “originalist” would argue that what was be-

lieved in 1964 defines the scope of the statute for as long as

the statutory text remains unchanged, and therefore until

changed by Congress’s amending or replacing the statute.

But as I noted earlier, statutory and constitutional provisions

frequently are interpreted on the basis of present need and

understanding rather than original meaning. Think for ex-

ample of Justice Scalia’s decisive fifth vote to hold that burn-

ing the American flag as a political protest is protected by

the free-speech clause of the First Amendment, provided

that it’s your flag and is not burned in circumstances in

which the fire might spread. Texas v. Johnson, 491 U.S. 397

(1989); United States v. Eichman, 496 U.S. 310 (1990). Burning

a flag is not speech in the usual sense and there is no indica-

tion that the framers or ratifiers of the First Amendment

thought that the word “speech” in the amendment embraced

flag burning or other nonverbal methods of communicating.

28 No. 15-1720

Or consider the Supreme Court’s holding that the Fourth

Amendment requires the issuance of a warrant as a precon-

dition to searching a person’s home or arresting him there.

E.g., Johnson v. United States, 333 U.S. 10, 13–14 (1948). There

is nothing in the amendment about requiring a warrant ever.

All that the amendment says about warrants is that general

warrants, and warrants that are vague or issued without

probable cause, are invalid. In effect the Supreme Court re-

wrote the Fourth Amendment, just as it rewrote the First

Amendment in the flag-burning cases, and just as it rewrote

the Sherman Act, and just as today we are rewriting Title

VII. We are Blackstone’s heirs.

And there is more: think of how the term “cruel and un-

usual punishments” has morphed over time. Or how the

Second Amendment, which as originally conceived and en-

acted was about arming the members of the state militias

(now the National Guard), is today interpreted to confer gun

rights on private citizens as well. Over and over again, old

statutes, old constitutional provisions, are given new mean-

ing, as explained so eloquently by Justice Holmes in Missouri

v. Holland, 252 U.S. 416, 433–34 (1920):

When we are dealing with words that also are a constit-

uent act, like the Constitution of the United States, we

must realize that they have called into life a being the de-

velopment of which could not have been foreseen com-

pletely by the most gifted of its begetters. … The case be-

fore us must be considered in the light of our whole expe-

rience and not merely in that of what was said a hundred

years ago. The treaty in question does not contravene any

prohibitory words to be found in the Constitution. The on-

ly question is whether it is forbidden by some invisible ra-

diation from the general terms of the Tenth Amendment.

No. 15-1720 29

We must consider what this country has become in deciding

what that amendment has reserved (emphasis added).

So by substituting Title VII for “that amendment” in

Holmes’s opinion, discrimination on grounds of “sex” in Ti-

tle VII receives today a new, a broader, meaning. Nothing

has changed more in the decades since the enactment of the

statute than attitudes toward sex. 1964 was more than a dec-

ade before Richard Raskind underwent male-to-female sex

reassignment surgery and took the name Renée Richards,

becoming the first transgender celebrity; now of course

transgender persons are common.

In 1964 (and indeed until the 2000s), and in some states

until the Supreme Court’s decision in Obergefell v. Hodges,

135 S. Ct. 2584 (2015), men were not allowed to marry each

other, nor women allowed to marry each other. If in those

days an employer fired a lesbian because he didn’t like les-

bians, he would have said that he was not firing her because

she was a woman—he would not have fired her had she

been heterosexual—and so he was not discriminating on the

basis of sex as understood by the authors and ratifiers of Ti-

tle VII. But today “sex” has a broader meaning than the geni-

talia you’re born with. In Baskin v. Bogan, 766 F.3d 648 (7th

Cir. 2014), our court, anticipating Obergefell by invalidating

laws in Indiana and Wisconsin that forbade same-sex mar-

riage, discussed at length whether homosexual orientation is

innate or chosen, and found that the scientific literature

strongly supports the proposition that it is biological and in-

nate, not a choice like deciding how to dress. The position of

a woman discriminated against on account of being a lesbian

is thus analogous to a woman’s being discriminated against

on account of being a woman. That woman didn’t choose to

30 No. 15-1720

be a woman; the lesbian didn’t choose to be a lesbian. I don’t

see why firing a lesbian because she is in the subset of wom-

en who are lesbian should be thought any less a form of sex

discrimination than firing a woman because she’s a woman.

But it has taken our courts and our society a considerable

while to realize that sexual harassment, which has been per-

vasive in many workplaces (including many Capitol Hill of-

fices and, notoriously, Fox News, among many other institu-

tions), is a form of sex discrimination. It has taken a little

longer for realization to dawn that discrimination based on a

woman’s failure to fulfill stereotypical gender roles is also a

form of sex discrimination. And it has taken still longer, with

a substantial volume of cases struggling and failing to main-

tain a plausible, defensible line between sex discrimination

and sexual-orientation discrimination, to realize that homo-

sexuality is nothing worse than failing to fulfill stereotypical

gender roles.

It’s true that even today if asked what is the sex of plain-

tiff Hively one would answer that she is female or that she is

a woman, not that she is a lesbian. Lesbianism denotes a

form of sexual or romantic attraction; it is not a physical sex

identifier like masculinity or femininity. A broader under-

standing of the word “sex” in Title VII than the original un-

derstanding is thus required in order to be able to classify

the discrimination of which Hively complains as a form of

sex discrimination. That broader understanding is essential.

Failure to adopt it would make the statute anachronistic, just

as interpreting the Sherman Act by reference to its nine-

teenth-century framers’ understanding of competition and

monopoly would make the Sherman Act anachronistic.

No. 15-1720 31

We now understand that homosexual men and women

(and also bisexuals, defined as having both homosexual and

heterosexual orientations) are normal in the ways that count,

and beyond that have made many outstanding intellectual

and cultural contributions to society (think for example of

Tchaikovsky, Oscar Wilde, Jane Addams, André Gide,

Thomas Mann, Marlene Dietrich, Bayard Rustin, Alan Tu-

ring, Alec Guinness, Leonard Bernstein, Van Cliburn, and

James Baldwin—a very partial list). We now understand that

homosexuals, male and female, play an essential role, in this

country at any rate, as adopters of children from foster

homes—a point emphasized in our Baskin decision. The

compelling social interest in protecting homosexuals (male

and female) from discrimination justifies an admittedly

loose “interpretation” of the word “sex” in Title VII to em-

brace homosexuality: an interpretation that cannot be im-

puted to the framers of the statute but that we are entitled to

adopt in light of (to quote Holmes) “what this country has be-

come,” or, in Blackstonian terminology, to embrace as a sen-

sible deviation from the literal or original meaning of the

statutory language.

I am reluctant however to base the new interpretation of

discrimination on account of sex in Title VII on such cases as

Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998),

a case of sexual harassment of one man by other men, held

by the Supreme Court to violate Title VII’s prohibition of sex

discrimination. The Court’s opinion is rather evasive. I quote

its critical language:

As some courts have observed, male-on-male sexual

harassment in the workplace was assuredly not the princi-

pal evil Congress was concerned with when it enacted Ti-

tle VII. But statutory prohibitions often go beyond the

32 No. 15-1720

principal evil to cover reasonably comparable evils, and it

is ultimately the provisions of our laws rather than the

principal concerns of our legislators by which we are gov-

erned. Title VII prohibits “discriminat[ion] … because of

… sex” in the “terms” or “conditions” of employment. Our

holding that this includes sexual harassment must extend

to sexual harassment of any kind that meets the statutory

requirements.

Id. at 79–80.

Consider the statement in the quotation that “statutory

prohibitions often go beyond the principal evil to cover rea-

sonably comparable evils, and it is ultimately the provisions of

our laws rather than the principal concerns of our legislators

by which we are governed” (emphasis added). That could be

thought “originalism,” if by “provisions” is meant statutory

language. Consider too the statement in Oncale that “Title

VII prohibits ‘discriminat[ion] … because of … sex’ in the

‘terms’ or ‘conditions’ of employment. Our holding that this

includes sexual harassment must extend to sexual harass-

ment of any kind that meets the statutory requirements.”

Although “of any kind” signals breadth, it is narrowed by

the clause that follows: “that meets the statutory require-

ments.” So we’re back to the essential issue in this case,

which is whether passage of time and concomitant change in

attitudes toward homosexuality and other unconventional

forms of sexual orientation can justify a fresh interpretation

of the phrase “discriminat[ion] … because of … sex” in Title

VII, which fortunately however is a half-century-old statute

ripe for reinterpretation.

Another decision we should avoid in ascribing present

meaning to Title VII is Loving v. Virginia, 388 U.S. 1 (1967),

which Hively argues protects her right to associate intimate-

No. 15-1720 33

ly with a person of the same sex. That was a constitutional

case, based on race. It outlawed state prohibitions of interra-

cial marriage. It had nothing to do with the recently enacted

Title VII.

The majority opinion in the present case states that “Ivy

Tech is disadvantaging [Hively] because she is a woman,” not a

man, who wants to have romantic attachments with female

partners (emphasis in original). In other words, Ivy Tech is

disadvantaging her because she is a woman who is not con-

forming to its notions of proper behavior. That’s a different

type of sex discrimination from the classic cases of old in

which women were erroneously (sometimes maliciously)

deemed unqualified for certain jobs. That was the basis on

which fire departments, for example, discriminated against

women—an example of discrimination plainly forbidden by

the language of Title VII.

The most tenable and straightforward ground for decid-

ing in favor of Hively is that while in 1964 sex discrimination

meant discrimination against men or women as such and not

against subsets of men or women such as effeminate men or

mannish women, the concept of sex discrimination has since

broadened in light of the recognition, which barely existed in

1964, that there are significant numbers of both men and

women who have a sexual orientation that sets them apart

from the heterosexual members of their genetic sex (male or

female), and that while they constitute a minority their sexu-

al orientation is not evil and does not threaten our society.

Title VII in terms forbids only sex discrimination, but we

now understand discrimination against homosexual men

and women to be a form of sex discrimination; and to para-

34 No. 15-1720

phrase Holmes, “We must consider what this country has be-

come in deciding what that [statute] has reserved.”

The majority opinion states that Congress in 1964 “may

not have realized or understood the full scope of the words

it chose.” This could be understood to imply that the statute

forbade discrimination against homosexuals but the framers

and ratifiers of the statute were not smart enough to realize

that. I would prefer to say that theirs was the then-current

understanding of the key word—sex. “Sex” in 1964 meant

gender, not sexual orientation. What the framers and ratifi-

ers understandably didn’t understand was how attitudes

toward homosexuals would change in the following half

century. They shouldn’t be blamed for that failure of fore-

sight. We understand the words of Title VII differently not

because we’re smarter than the statute’s framers and ratifiers

but because we live in a different era, a different culture.

Congress in the 1960s did not foresee the sexual revolution

of the 2000s. What our court announced in Doe v. City of

Belleville, 119 F.3d 563, 572 (7th Cir. 1997), is what Congress

had declared in 1964: “the traditional notion of ‘sex.’”

I would prefer to see us acknowledge openly that today

we, who are judges rather than members of Congress, are

imposing on a half-century-old statute a meaning of “sex

discrimination” that the Congress that enacted it would not

have accepted. This is something courts do fairly frequently

to avoid statutory obsolescence and concomitantly to avoid

placing the entire burden of updating old statutes on the leg-

islative branch. We should not leave the impression that we

are merely the obedient servants of the 88th Congress (1963–

1965), carrying out their wishes. We are not. We are taking

advantage of what the last half century has taught.

No. 15-1720 35

FLAUM, Circuit Judge, joined by RIPPLE, Circuit Judge, con-

curring. I join Parts I and II of the majority opinion and agree

that Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-2(a), does not preclude Professor Hively’s claim that

Ivy Tech Community College engaged in unlawful employ-

ment discrimination. I find the issue before us is simply

whether discriminating against an employee for being homo-

sexual violates Title VII’s prohibition against discriminating

against that employee because of their sex. In my view, the

answer is yes, and the statute’s text commands as much.

Kimberly Hively, who is openly lesbian, taught as a part-

time, adjunct professor at Ivy Tech Community College. Over

the course of her tenure, Professor Hively applied for full-

time positions with the College, and it rejected each of her ap-

plications. After the College did not renew her contract, Pro-

fessor Hively filed a pro se charge with the Equal Employment

Opportunity Commission, alleging that Ivy Tech’s refusal to

promote her constituted discrimination “based on [her] sex-

ual orientation.” Ivy Tech denied having engaged in any dis-

crimination and moved to dismiss Professor Hively’s com-

plaint for failing to state a claim on which relief could be

granted. Throughout the course of this litigation, I under-

stand the controlling question to have been the same: Does

discrimination based on Professor Hively’s “sexual orienta-

tion” constitute discrimination based on her “sex”? Under Ti-

tle VII’s text, it does.

Title VII provides:

It shall be an unlawful employment practice for an

employer—

36 No. 15-1720

(1) to fail or refuse to hire or to discharge any individual,

or otherwise to discriminate against any individual

with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s

… sex[.]

42 U.S.C. § 2000e-2(a)(1). To prove her case, an employee

“must show that the employer actually relied on her gender1

in making its decision.” Price Waterhouse v. Hopkins, 490 U.S.

228, 251 (1989).

Assuming the facts as pled are true, as we must at this

stage of the litigation, Ivy Tech refused to promote Professor

Hively because she is homosexual. Professor Hively argues

that, in doing so, the College relied on her sex, because, but

for her sex, she would not have been denied a promotion (i.e.,

she would not have been denied a promotion if she were a

man who was sexually attracted to women). She also argues

that Ivy Tech’s actions constituted associational discrimina-

tion: The College took issue with Professor Hively’s intimate

association with women and refused to promote her. There is

no allegation, however, that the College refused to promote

women; nor is there an allegation that it refused to promote

those who associate with women. Rather, Ivy Tech’s alleged

animus was against Professor Hively’s sexual orientation—a

combination of these two factors—which the College argues

is not a trait enumerated in Title VII.

Setting aside the treatment in the majority and dissenting

opinions of sexual orientation as a freestanding concept, I

1 As the majority notes, the Supreme Court has often treated “gender”

and “sex” as synonymous. I agree that there is no need to inquire whether

they are the same for legal purposes in this case.

No. 15-1720 37

conclude discrimination against an employee on the basis of

their homosexuality is necessarily, in part, discrimination

based on their sex. Fundamental to the definition of homosex-

uality is the sexual attraction to individuals of the “same sex.”

Homosexual, MERRIAM-WEBSTER DICTIONARY ONLINE, available

at https://www.merriam-webster.com/dictionary/homosex-

ual (“[O]f, relating to, or characterized by a tendency to direct

sexual desire toward another of the same sex”) (emphasis

added) (last visited April 4, 2017); see also Homosexual, BLACK’S

LAW DICTIONARY (10th ed. 2014) (“Of relating to, or character-

ized by sexual desire for a person of the same sex.”) (emphasis

added); Homosexual, OXFORD ENGLISH DICTIONARY (5th ed.

1964) (“Having a sexual propensity for persons of one’s own

sex.”) (emphasis added). One cannot consider a person’s ho-

mosexuality without also accounting for their sex: doing so

would render “same” and “own” meaningless. As such, dis-

criminating against that employee because they are homosex-

ual constitutes discriminating against an employee because of

(A) the employee’s sex, and (B) their sexual attraction to indi-

viduals of the same sex. And “sex,” under Title VII, is an enu-

merated trait.

This raises the question: Does Title VII’s text require a

plaintiff to show that an employer discriminated against them

solely “because of” an enumerated trait? Again, I turn to the

text, which clearly states:

Except as otherwise provided in this subchapter, an

unlawful employment practice is established when the

complaining party demonstrates that … sex … was a

motivating factor for any employment practice, even though

other factors also motivated the practice.

38 No. 15-1720

42 U.S.C. § 2000e-2(m) (emphasis added). Congress added

this amendment to Title VII partially in response to the Su-

preme Court’s plurality decision in Hopkins, in which the

Court stated:

[S]ince we know that the words “because of” do not

mean “solely because of,” we also know that Title VII

meant to condemn even those decisions based on a

mixture of legitimate and illegitimate considerations.

When, therefore, an employer considers both gender

and legitimate factors at the time of making a decision,

that decision was “because of” sex and the other, legit-

imate considerations….We need not leave our com-

mon sense at the doorstep when we interpret a statute.

It is difficult for us to imagine that, in the simple words

“because of,” Congress meant to obligate a plaintiff to

identify the precise causal role played by legitimate

and illegitimate motivations in the employment deci-

sion she challenges. We conclude, instead, that Con-

gress meant to obligate her to prove that the employer

relied upon sex-based considerations in coming to its

decision.

490 U.S. at 241–242 (footnote omitted). The Court made clear

that “[t]he critical inquiry … is whether gender was a factor in

the employment decision” when it was made. Id. at 241 (em-

phasis added). So if discriminating against an employee be-

cause she is homosexual is equivalent to discriminating

against her because she is (A) a woman who is (B) sexually

No. 15-1720 39

attracted to women, then it is motivated, in part, by an enu-

merated trait: the employee’s sex. That is all an employee

must show to successfully allege a Title VII claim.2

Cases analyzing employment actions based on interracial

relationships provide an apt illustration. Although this Cir-

cuit has not yet addressed whether claims based on a theory

of associational discrimination are cognizable under Title VII,

I agree with the majority that the Second Circuit’s analysis in

Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008), is persua-

sive. There, the court concluded that the college had violated

Title VII after firing a white basketball coach because of his

marriage to a black woman. The court explained, “[W]here an

employee is subjected to adverse action because an employer

disapproves of interracial association, the employee suffers

discrimination because of the employee’s own race.” Id. at 139.

This comports with Title VII’s text. Interracial relationships

are comprised of (A) an individual of one race, and (B) an-

other individual of a different race. Without considering the

first individual’s race, the word “different” is meaningless.

2 The foregoing analysis should obtain even if an employer allegedly

discriminates against all homosexual employees. In that case, the em-

ployer’s discrimination across sexes does not demonstrate that sex is irrel-

evant, but rather that each individual has a plausible sex-based discrimi-

nation claim. See City of Los Angeles, Dep’t of Water and Power v. Manhart,

435 U.S. 702, 708 (1978) (“[Title VII] makes it unlawful ‘to discriminate

against any individual … because of such individual’s … sex[.]’ The statute’s

focus on the individual is unambiguous.” (quoting 42 U.S.C.

§ 2000e-2(a)(1))). When confronting claims that are inherently based in

part on sex, such as discrimination against homosexuals, each employee’s

claim satisfies Title VII on its face, no matter the sex of any other employee

who experienced discrimination.

40 No. 15-1720

Consequently, employment discrimination based on an em-

ployee’s interracial relationship is, in part, tied to an enumer-

ated trait: the employee’s race. This type of discrimination is

prohibited by Title VII.

The same principle applies here. Ivy Tech allegedly re-

fused to promote Professor Hively because she was homosex-

ual—or (A) a woman who is (B) sexually attracted to women.

Thus, the College allegedly discriminated against Professor

Hively, at least in part, because of her sex. I conclude that Title

VII, as its text provides, does not allow this.

No. 15-1720 41

SYKES, Circuit Judge, with whom BAUER and KANNE,

Circuit Judges, join, dissenting. Any case heard by the full

court is important. This one is momentous. All the more

reason to pay careful attention to the limits on the court’s

role. The question before the en banc court is one of statuto-

ry interpretation. The majority deploys a judge-empowering,

common-law decision method that leaves a great deal of

room for judicial discretion. So does Judge Posner in his

concurrence. Neither is faithful to the statutory text, read

fairly, as a reasonable person would have understood it

when it was adopted. The result is a statutory amendment

courtesy of unelected judges. Judge Posner admits this; he

embraces and argues for this conception of judicial power.

The majority does not, preferring instead to smuggle in the

statutory amendment under cover of an aggressive reading

of loosely related Supreme Court precedents. Either way, the

result is the same: the circumvention of the legislative pro-

cess by which the people govern themselves.

Respect for the constraints imposed on the judiciary by a

system of written law must begin with fidelity to the tradi-

tional first principle of statutory interpretation: When a

statute supplies the rule of decision, our role is to give effect

to the enacted text, interpreting the statutory language as a

reasonable person would have understood it at the time of

enactment. We are not authorized to infuse the text with a

new or unconventional meaning or to update it to respond

to changed social, economic, or political conditions.

In a handful of statutory contexts, Congress has vested

the federal courts with authority to consider and make new

rules of law in the common-law way. The Sherman Act is the

archetype of the so-called “common-law statutes,” but there

42 No. 15-1720

are very few of these and Title VII is not one of them. Nw.

Airlines, Inc. v. Transp. Workers Union of Am., AFL-CIO,

451 U.S. 77, 95–97 (1981); id. at 98 n.42. So our role is inter-

pretive only; we lack the discretion to ascribe to Title VII a

meaning it did not bear at its inception. Sitting en banc

permits us to overturn our own precedents, but in a statuto-

ry case, we do not sit as a common-law court free to engage

in “judicial interpretive updating,” as Judge Posner calls it, 1

or to do the same thing by pressing hard on tenuously

related Supreme Court opinions, as the majority does.

Judicial statutory updating, whether overt or covert, can-

not be reconciled with the constitutional design. The Consti-

tution establishes a procedure for enacting and amending

statutes: bicameralism and presentment. See U.S. CONST.

art. I, § 7. Needless to say, statutory amendments brought to

you by the judiciary do not pass through this process. That is

why a textualist decision method matters: When we assume

the power to alter the original public meaning of a statute

through the process of interpretation, we assume a power

that is not ours. The Constitution assigns the power to make

and amend statutory law to the elected representatives of the

people. However welcome today’s decision might be as a

policy matter, it comes at a great cost to representative self-

government.

I

Title VII of the Civil Rights Act of 1964 makes it unlawful

for an employer “to fail or refuse to hire or to discharge any

1 He describes this method of statutory interpretation throughout his

opinion and gives it the name “judicial interpretive updating” on

page 27.

No. 15-1720 43

individual, or otherwise to discriminate against any individ-

ual … because of such individual’s race, color, religion, sex,

or national origin.” 42 U.S.C. § 2000e-2(a)(1). Sexual orienta-

tion is not on the list of forbidden categories of employment

discrimination, and we have long and consistently held that

employment decisions based on a person’s sexual orientation

do not classify people on the basis of sex and thus are not

covered by Title VII’s prohibition of discrimination “because

of sex.” Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058,

1062 (7th Cir. 2003); Spearman v. Ford Motor Co., 231 F.3d

1080, 1085 (7th Cir. 2000); Hamner v. St. Vincent Hosp. &

Health Care Ctr., Inc., 224 F.3d 701, 704 (7th Cir. 2000); Ulane v.

E. Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984). This

interpretation has been stable for many decades and is

broadly accepted; all circuits agree that sexual-orientation

discrimination is a distinct form of discrimination and is not

synonymous with sex discrimination. See Majority Op. at

pp. 3–4 (collecting cases).

Today the court jettisons the prevailing interpretation

and installs the polar opposite. Suddenly sexual-orientation

discrimination is sex discrimination and thus is actionable

under Title VII. What justification is offered for this radical

change in a well-established, uniform interpretation of an

important—indeed, transformational—statute? My col-

leagues take note of the Supreme Court’s “absence from the

debate.” Id. at p. 4. What debate? There is no debate, at least

not in the relevant sense. Our long-standing interpretation of

Title VII is not an outlier. From the statute’s inception to the

present day, the appellate courts have unanimously and

repeatedly read the statute the same way, as my colleagues

must and do acknowledge. Id. at pp. 3–4. The Supreme

Court has had no need to weigh in, and the unanimity

44 No. 15-1720

among the courts of appeals strongly suggests that our long-

settled interpretation is correct.

Of course there is a robust debate on this subject in our

culture, media, and politics. Attitudes about gay rights have

dramatically shifted in the 53 years since the Civil Rights Act

was adopted. Lambda Legal’s proposed new reading of

Title VII—offered on behalf of plaintiff Kimberly Hively at

the appellate stage of this litigation—has a strong foothold in

current popular opinion.

This striking cultural change informs a case for legislative

change and might eventually persuade the people’s repre-

sentatives to amend the statute to implement a new public

policy. But it does not bear on the sole inquiry properly

before the en banc court: Is the prevailing interpretation of

Title VII—that discrimination on the basis of sexual orienta-

tion is different in kind and not a form of sex discrimina-

tion—wrong as an original matter?

A

On that question Lambda Legal has not carried its bur-

den of legal persuasion. To be clear, I agree with my col-

leagues that the proposed new interpretation is not neces-

sarily incorrect simply because no one in the 1964 Congress

that adopted Title VII intended or anticipated its application

to sexual-orientation discrimination. The subjective inten-

tions of the legislators do not matter. Statutory interpretation

is an objective inquiry that looks for the meaning the statuto-

ry language conveyed to a reasonable person at the time of

enactment. The objective meaning of the text is not delimited

by what individual lawmakers specifically had in mind

when they voted for the statute. The Supreme Court made

No. 15-1720 45

this point clear in Oncale when it said that “statutory prohi-

bitions often go beyond the principal evil to cover reasona-

bly comparable evils, and it is ultimately the provisions of

our laws rather than the principal concerns of our legislators

by which we are governed.” Oncale v. Sundowner Offshore

Servs., Inc., 523 U.S. 75, 79 (1998). Broadly worded statutes

are regularly applied to circumstances beyond the subjective

contemplation of the lawmakers who adopted the text.

That much is uncontroversial. Indeed, it derives from a

foundational rule-of-law principle:

[I]t is simply incompatible with democratic

government, or indeed, even with fair govern-

ment, to have the meaning of a law determined

by what the lawgiver meant, rather than by

what the lawgiver promulgated. … [Ours is a]

government of laws, not of men. Men may in-

tend what they will; but it is only the laws that

they enact which bind us.

ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL

COURTS AND THE LAW 17 (Amy Gutmann ed., 1997).

So as a matter of interpretive method, I agree with my

colleagues that the scope of Title VII is not limited by the

subjective intentions of the enacting legislators. Or as Chief

Judge Wood puts it in her elegant opinion for the en banc

majority, the expectations of the enacting legislators “cannot

stand in the way of the provisions of the law that are on the

books.” 2 Majority Op. at p. 10.

2 Like my colleagues, I too decline to defer to the EEOC’s decision in

Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 15,

2015). Majority Op. at pp. 8–9. This is not a case about agency deference.

46 No. 15-1720

B

That is where our agreement ends. The en banc majority

rests its new interpretation of sex discrimination on a

thought experiment drawn from the “tried-and-true” com-

parative method of proof often used by plaintiffs in discrim-

ination cases. Id. at p. 11. The majority also invokes Loving v.

Virginia, 388 U.S. 1 (1967), the Supreme Court’s historic

decision striking down Virginia’s miscegenation laws under

the Fourteenth Amendment’s Equal Protection Clause, as

well as cases involving sex stereotyping, most prominently

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

But the analysis must begin with the statutory text; it

largely ends there too. Is it even remotely plausible that in

1964, when Title VII was adopted, a reasonable person

competent in the English language would have understood

that a law banning employment discrimination “because of

sex” also banned discrimination because of sexual orienta-

tion? The answer is no, of course not.

“It is a fundamental canon of statutory construction that,

unless otherwise defined, words will be interpreted as

taking their ordinary, contemporary, common meaning.”

Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 876 (2014) (internal

quotation marks omitted). The word “contemporary” as

used here means contemporaneous with the statute’s enactment,

not “contemporary” as in “now.” Id. at 876–77; see also

Jackson v. Blitt & Gaines, P.C., 833 F.3d 860, 863 (7th Cir. 2016)

(citing Sandifer and explaining that statutory interpretation

“look[s] to the meaning of the word[s] at the time the statute

was enacted”). The interpretive inquiry looks to the original

public meaning of the statutory text.

No. 15-1720 47

Title VII does not define discrimination “because of sex.”

In common, ordinary usage in 1964—and now, for that

matter—the word “sex” means biologically male or female; it

does not also refer to sexual orientation. See, e.g., Sex, THE

AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE

(1st ed. 1969) (defining “sex” as “[t]he property or quality by

which organisms are classified according to their reproduc-

tive functions[;] [e]ither of two divisions, designated male

and female, of this classification”); Sex, NEW OXFORD

AMERICAN DICTIONARY (3d ed. 2010) (defining “sex” as

“either of the two main categories (male and female) into

which humans and many other living things are divided on

the basis of their reproductive functions”); Sex, THE

AMERICAN HERITAGE DESK DICTIONARY (5th ed. 2013) (defin-

ing “sex” as “[e]ither of the two divisions, female and male,

by which most organisms are classified on the basis of their

reproductive organs and functions[;] [t]he condition or

character of being female or male”).

To a fluent speaker of the English language—then and

now—the ordinary meaning of the word “sex” does not

fairly include the concept of “sexual orientation.” 3 The two

terms are never used interchangeably, and the latter is not

subsumed within the former; there is no overlap in meaning.

Contrary to the majority’s vivid rhetorical claim, it does not

3 The term “sexual orientation” does not appear in dictionaries at or

around the time of Title VII’s enactment. According to the current

definition, it is not synonymous with “sex.” Sexual Orientation, OXFORD

ENGLISH DICTIONARY (2009 ed.) (“Originally: (the process of) orientation

with respect to a sexual goal, potential mate, partner, etc. Later chiefly: a

person’s sexual identity in relation to the gender to whom he or she is

usually attracted; (broadly) the fact of being heterosexual, bisexual, or

homosexual.”).

48 No. 15-1720

take “considerable calisthenics” to separate the two. Majority

Op. at p. 20. The words plainly describe different traits, and

the separate and distinct meaning of each term is easily

grasped. More specifically to the point here, discrimination

“because of sex” is not reasonably understood to include

discrimination based on sexual orientation, a different

immutable characteristic. Classifying people by sexual

orientation is different than classifying them by sex. The two

traits are categorically distinct and widely recognized as

such. There is no ambiguity or vagueness here.

Accordingly, as we said more than three decades ago in

Ulane, Title VII’s prohibition of discrimination “because of

sex” makes it unlawful for an employer “to discriminate

against women because they are women and against men

because they are men.” 742 F.2d at 1085. Because sexual-

orientation discrimination is not synonymous with sex

discrimination in ordinary usage, Title VII does not prohibit

sexual-orientation discrimination. Not expressly (obviously),

and not by fair implication either.

C

This commonsense understanding is confirmed by the

language Congress uses when it does legislate against sexual-

orientation discrimination. For example, the Violence

Against Women Act prohibits funded programs and activi-

ties from discriminating “on the basis of actual or perceived

race, color, religion, national origin, sex, gender identity, …

sexual orientation, or disability.” 42 U.S.C. § 13925(b)(13)(A)

(emphases added). If sex discrimination is commonly under-

stood to encompass sexual-orientation discrimination, then

listing the two categories separately, as this statute does, is

needless surplusage. The federal Hate Crimes Act is another

No. 15-1720 49

example. It imposes a heightened punishment for causing or

attempting to cause bodily injury “to any person, because of

the actual or perceived religion, national origin, gender,

sexual orientation, gender identity, or disability of any per-

son.” 18 U.S.C. § 249(a)(2)(A) (emphases added). 4

Other examples can be found elsewhere in the U.S. Code.

See, e.g., 42 U.S.C. § 3716(a)(1)(C) (providing federal assis-

tance to state and local authorities for the investigation and

prosecution of certain crimes “motivated by prejudice based

on the actual or perceived race, color, religion, national

origin, gender, sexual orientation, gender identity, or disability

of the victim”) (emphases added); 20 U.S.C. § 1092(f)(1)(F)(ii)

(requiring colleges and universities to collect and report

information regarding crimes on campus, including “crimes

involving bodily injury to any person, in which the victim is

intentionally selected because of the actual or perceived race,

gender, religion, national origin, sexual orientation, gender

identity, ethnicity, or disability of the victim”) (emphases

added); 42 U.S.C. 294e-1(b)(2) (requiring applicants for a

federal mental-health education-grant program to demon-

strate participation “of individuals and groups from differ-

ent racial, ethnic, cultural, geographic, religious, linguistic,

and class backgrounds, and different genders and sexual

orientations”) (emphases added).

State and local antidiscrimination laws likewise distin-

guish between sex discrimination and sexual-orientation

discrimination by listing them separately as distinct forms of

4 A different subsection of the hate-crimes law imposes the same height-

ened penalty for causing or attempting to cause bodily injury because of

a person’s race. 18 U.S.C. § 249(a)(1).

50 No. 15-1720

unlawful discrimination. See, e.g., Illinois Human Rights Act,

775 ILL. COMP. STAT. 5/1-103(Q) (defining “unlawful discrim-

ination” as “discrimination against a person because of his

or her race, color, religion, national origin, ancestry, age, sex,

marital status, order of protection status, disability, military

status, sexual orientation, pregnancy, or unfavorable discharge

from military service”) (emphases added); Iowa Civil Rights

Act, IOWA CODE § 216.7(1)(a) (prohibiting discrimination in

public accommodations “because of race, creed, color, sex,

sexual orientation, gender identity, national origin, religion, or

disability”) (emphases added); WIS. STAT. § 106.52(3) (using

similar language to prohibit discrimination in public ac-

commodations); Minnesota Human Rights Act, MINN. STAT.

§ 363A.11(1)(a)(1) (same); OR. REV. STAT. § 659A.403(1)

(same); Washington Civil Rights Act, WASH. REV. CODE

§ 49.60.030(1) (declaring as a civil right the “right to be free

from discrimination because of race, creed, color, national

origin, sex, honorably discharged veteran or military status,

sexual orientation, or the presence of any … disability”)

(emphases added); D.C. CODE § 2-1402.31(a) (forbidding

certain forms of discrimination “based on the actual or

perceived: race, color, religion, national origin, sex, age, …

[or] sexual orientation … of any individual”) (emphases

added); BLOOMINGTON, IND., CODE § 2.21.030(10) (defining a

“discriminatory practice” as “the exclusion of a person by

another person from equal opportunities because of race,

religion, color, sex, national origin, ancestry, sexual orienta-

tion, gender identity, disability, housing status or status as a

veteran”) (emphases added); INDIANAPOLIS, IND., CODE

§ 581-101 (defining prohibited “discriminatory practices” to

include denying employment and educational opportunity,

access to public accommodations, and acquisition of real

No. 15-1720 51

estate “based on race, color, religion, ancestry, age, national

origin, disability, sex, sexual orientation, gender identity, or

United States military service veteran status”) (emphases

added).

I could go on, but the point has been made. This uni-

formity of usage is powerful objective evidence that sexual-

orientation discrimination is broadly recognized as an

independent category of discrimination and is not synony-

mous with sex discrimination.

II

My colleagues in the majority superficially acknowledge

Ulane’s “truism” that sex discrimination is discrimination

based on a person’s biological sex. Majority Op. at p. 3. As

they see it, however, even if sex discrimination is understood

in the ordinary way, sexual-orientation discrimination is sex

discrimination because “it is actually impossible to discrimi-

nate on the basis of sexual orientation without discriminat-

ing on the basis of sex.” Id. at p. 22.

Not true. An employer who refuses to hire homosexuals

is not drawing a line based on the job applicant’s sex. He is

not excluding gay men because they are men and lesbians

because they are women. His discriminatory motivation is

independent of and unrelated to the applicant’s sex. Sexism

(misandry and misogyny) and homophobia are separate

kinds of prejudice that classify people in distinct ways based

on different immutable characteristics. Simply put, sexual-

orientation discrimination doesn’t classify people by sex; it

doesn’t draw male/female distinctions but instead targets

homosexual men and women for harsher treatment than

heterosexual men and women.

52 No. 15-1720

The majority opinion merges these two distinct catego-

ries of discrimination by misapplying the comparative

method of proof often used by plaintiffs in discrimination

cases. As a threshold matter, it’s important to note that as

used here, the comparative method is not serving its usual

and intended purpose; it is not invoked as a method of proof

or a technique for evaluating the sufficiency of the plaintiff’s

allegations or evidence. That’s because Hively has not, of

course, raised a claim of sex discrimination. She does not

allege that Ivy Tech refused to promote her to full-time

professor and canceled her part-time teaching contract

because of her sex; she does not claim that she was treated

differently than a similarly situated man. She alleges that Ivy

Tech took these adverse actions against her because she is a

lesbian, not because she is a woman. So the majority’s discus-

sion of what Hively “alleges,” id. at p. 11, followed by an

incantation of the Rule 12(b)(6) standard for evaluating the

sufficiency of the plaintiff’s factual allegations (“[w]e take

the facts in the light most favorable to her”), id., is seriously

misleading.

This appeal has nothing to do with Hively’s factual alle-

gations. We have only a legal question about the meaning of

Title VII. Lambda Legal is advancing a creative new legal

argument for reinterpreting Title VII, deploying the compara-

tive method not as a method of proof (its normal and in-

tended function) but as a thought experiment with the end

of imbuing the statute with a new meaning that it did not

bear at its inception.

This highlights a deeper problem with the court’s com-

parative analysis. The purpose of the comparative method is

to isolate whether a statutorily forbidden motivation is at

No. 15-1720 53

work as a factual matter—in a sex-discrimination case, to

isolate whether the defendant employer took a particular

adverse employment action against a particular female

employee because she is a woman or against a particular

male employee because he is a man. Title VII’s “intentional

discrimination provision prohibits certain motives” for taking

adverse job actions, EEOC v. Abercrombie & Fitch Stores, Inc.,

135 S. Ct. 2028, 2033 (2015), so as a required factual element

of the claim, the plaintiff must prove that the employer

actually acted with the intent or motive to discriminate on

the basis of a statutorily protected trait when he made the

employment decision in question, Ricci v. DeStefano, 557 U.S.

557, 577 (2009) (citing Watson v. Forth Worth Bank & Tr.,

487 U.S. 977, 986 (1988)).

The comparative method of proof is a useful technique

for uncovering the employer’s real motive for taking the

challenged action. Comparing the plaintiff to a similarly

situated employee of the opposite sex can help the fact

finder determine whether the employer was actually moti-

vated by the plaintiff’s sex or acted for some other reason. It’s

a device for ferreting out a prohibited discriminatory motive

as an actual cause of the adverse employment action; it does

this by controlling for other possible motives. If a female

plaintiff can point to a male employee who is identical to her

in every material respect and was treated more favorably,

then the fact finder can draw an inference that the unfavora-

ble treatment was actually motivated by the plaintiff’s sex.

Here the majority is not using the comparative method to

isolate whether Ivy Tech was actually motivated by Hively’s

sex when it refused to promote her to full-time professor and

canceled her part-time teaching contract. To repeat, Hively

54 No. 15-1720

does not make that allegation. Her factual claim is that Ivy

Tech refused to promote her and canceled her contract

because she is a lesbian. The only question for us is whether

that claim—her real claim—is actionable under Title VII as a

matter of law. That’s a pure question of statutory interpreta-

tion.

But the comparative method of proof is an evidentiary

test; it is not an interpretive tool. It tells us nothing about the

meaning or scope of Title VII. In ordinary English usage,

sexual-orientation discrimination is a distinct form of dis-

crimination and is not synonymous with sex discrimination.

That’s the plain meaning of Title VII’s text as originally

understood. An evidentiary test like the comparative method

of proof has no work to do here and is utterly out of place.

Moreover, the majority distorts the comparative method

by opportunistically framing the comparison. If the aim is to

isolate actual discriminatory motive based on the plaintiff’s

sex, then we must hold everything constant except the plain-

tiff’s sex. But my colleagues load the dice by changing two

variables—the plaintiff’s sex and sexual orientation—to

arrive at the hypothetical comparator. The court’s reasoning

essentially distills to this: If we compare Hively, a homosex-

ual woman, to hypothetical Professor A, a heterosexual man,

we can see that Ivy Tech is actually disadvantaging Hively

because she is a woman. Majority Op. at pp. 11–12.

As a test for isolating an actual case of sex discrimination,

that way of framing the comparative question doesn’t do the

trick. Simply put, the comparison can’t do its job of ruling in

sex discrimination as the actual reason for the employer’s

decision (by ruling out other possible motivations) if we’re

not scrupulous about holding everything constant except the

No. 15-1720 55

plaintiff’s sex. That includes the plaintiff’s sexual orientation.

If we’re really serious about trying to isolate whether sex

discrimination played a role in a specific employment deci-

sion, the test must exclude other factors that may have been

decisive.

For the comparison to be valid as a test for the role of sex

discrimination in this employment decision, the proper

comparison is to ask how Ivy Tech treated qualified gay

men. If an employer is willing to hire gay men but not

lesbians, then the comparative method has exposed an actual

case of sex discrimination. If, on the other hand, an employer

hires only heterosexual men and women and rejects all

homosexual applicants, then no inference of sex discrimina-

tion is possible, though we could perhaps draw an inference

of sexual-orientation discrimination.

But of course my colleagues are not actually trying to iso-

late sex discrimination as the real motivation for Ivy Tech’s

decision. They are not, that is, testing for a true case of sex

discrimination. They are using the comparative method as a

rhetorical device to conjure an entirely new understanding

of the term “sex discrimination” for use in the Title VII

context, one that denies the reality that sex and sexual

orientation are different traits and that classifying people by

sexual orientation is not the same as classifying them by sex.

This is artifice, not interpretation.

My colleagues insist that “[t]he virtue of looking at com-

parators … is that this process sheds light on the interpretive

question raised by Hively’s case: is sexual-orientation dis-

crimination a form of sex discrimination, given the way in

which the Supreme Court has interpreted the word ‘sex’ in

the statute?” Majority Op. at p. 14. I have two responses.

56 No. 15-1720

First, at the risk of repeating myself, the point of “looking at

comparators” in Title VII cases is to see if the evidentiary

record permits a factual inference of actual discriminatory

motive; the comparative method has no interpretive function.

Second, the Supreme Court has never deployed an abstract

version of the comparative method of proof to illuminate the

original meaning or scope of Title VII, nor has it even hinted

that such an abstraction is a proper interpretive tool. For

good reason. Ordinary people do not use abstract thought

experiments to ascribe meaning to texts. 5

5 Judge Flaum’s concurrence offers a somewhat different way to think

about sexual-orientation discrimination: “Fundamental to the definition

of homosexuality is the sexual attraction to individuals of the ‘same

sex.’… One cannot consider a person’s homosexuality without also

accounting for their sex: doing so would render ‘same’ … meaningless.”

Flaum, J., concurring, at p. 37. But an employer who categorically won’t

hire homosexuals is not “accounting for” a job applicant’s sex in the

sense meant by antidiscrimination law; a hiring policy of “no homosexu-

als need apply” is gender blind. The next sentence in the analysis

likewise doesn’t follow: “As such, discriminating against that employee

because they are homosexual constitutes discriminating against an

employee because of (A) the employee’s sex, and (B) their sexual attrac-

tion to individuals of the same sex.” Id. Part (B) is true; part (A) is not. An

employer who refuses to hire a lesbian applicant because she is a lesbian

only “accounts for” her sex in the limited sense that he notices she is a

woman. But that’s not the object of the employer’s discriminatory intent,

not even in part. Her sex isn’t a motivating factor for the employer’s

decision; the employer objects only to her sexual orientation. This

attempt to conceptually split homosexuality into two parts—a person’s

sex and his or her sexual attraction to persons of the same sex—doesn’t

make sexual-orientation discrimination actionable as sex discrimination.

No. 15-1720 57

III

A

The majority also draws on Loving, the Supreme Court’s

iconic decision invalidating Virginia’s miscegenation statutes

on equal-protection grounds. This case is not a variant of

Loving. Miscegenation laws plainly employ invidious racial

classifications; they are inherently racially discriminatory. In

contrast, sexual-orientation discrimination springs from a

wholly different kind of bias than sex discrimination. The

two forms of discrimination classify people based on differ-

ent traits and thus are not the same.

In Loving, Virginia tried to defend its antimiscegenation

regime by insisting that miscegenation statutes do not

actually discriminate based on race because both the black

and white spouses in an interracial marriage are punished

equally. 388 U.S. at 8 (“[T]he State contends that, because its

miscegenation statutes punish equally both the white and

the Negro participants in an interracial marriage, these

statutes, despite their reliance on racial classifications[,] do

not constitute an invidious discrimination based upon

race.”). The Supreme Court made short work of that spe-

cious argument: “[W]e deal [here] with statutes containing

racial classifications, and the fact of equal application does

not immunize the statute[s] from the very heavy burden of

justification which the Fourteenth Amendment has tradi-

tionally required of state statutes drawn according to race.”

Id. at 9.

The Court went on to explain that the “clear and central

purpose of the Fourteenth Amendment was to eliminate all

official state sources of invidious racial discrimination in the

58 No. 15-1720

States.” Id. at 10. The Court continued with this: “There can

be no question but that Virginia’s miscegenation statutes rest

solely upon distinctions drawn according to race. The stat-

utes proscribe generally accepted conduct if engaged in by

members of different races.” Id. at 11. After explaining that

the “[p]enalties for miscegenation arose as an incident to

slavery,” id. at 6, and are “designed to maintain White

Supremacy,” 6 id. at 11, the Court announced its holding:

“There can be no doubt that restricting the freedom to marry

solely because of racial classifications violates the central

meaning of the Equal Protection Clause,” id. at 12.

As these passages from the Court’s opinion make clear,

Loving rests on the inescapable truth that miscegenation laws

are inherently racist. They are premised on invidious ideas

about white superiority and use racial classifications toward

the end of racial purity and white supremacy. Sexual-

orientation discrimination, on the other hand, is not inher-

ently sexist. No one argues that sexual-orientation discrimi-

nation aims to promote or perpetuate the supremacy of one

sex. In short, Loving neither compels nor supports the major-

ity’s decision to upend the long-settled understanding that

sex discrimination and sexual-orientation discrimination are

distinct.

6 Virginia’s highest court had identified what it said were the state’s

“legitimate purposes” for its miscegenation laws: “‘to preserve the racial

integrity of [the state’s] citizens,’ and to prevent ‘the corruption of blood,’

‘a mongrel breed of citizens,’ and ‘the obliteration of racial pride.’”

Loving v. Virginia, 388 U.S. 1, 7 (1967) (quoting Naim v. Naim, 87 S.E.2d

749, 756 (1955)). This, the Supreme Court said, was “obviously an

endorsement of the doctrine of White Supremacy.” Id.

No. 15-1720 59

For the same reason, the majority’s reliance on Parr,

Holcomb, and Drake, which translated Loving to the Title VII

context, is entirely inapt. An employer who refuses to hire or

fires an employee based on his interracial marriage is obvi-

ously drawing invidious racial classifications akin to those

inherent in Virginia’s miscegenation laws. Loving’s equal-

protection holding extends to Title VII racial-discrimination

claims because those claims share the same contextual

foundation. They arise in a nation whose original sin is

slavery, where some states sought to perpetuate white

supremacy as recently as a half century ago, and where the

vestiges of this iniquitous history persist in our workplaces

and in other institutions of our society. The Equal Protection

Clause and Title VII’s prohibition of racial discrimination in

the workplace both operate to curtail the evil of racism

inherent in antimiscegenation. That explains why Loving

applies to Title VII racial-discrimination claims but is not a

warrant for reading sexual-orientation discrimination into

the statute.

B

The majority also relies on cases involving sex stereotyp-

ing, most notably the Supreme Court’s decision in Price

Waterhouse v. Hopkins. More specifically, my colleagues

conclude that a claim of sexual-orientation discrimination is

indistinguishable from a claim involving sex stereotyping.

Majority Op. at pp. 12–15. I disagree. Nothing in Hopkins

altered the traditional understanding that sexual-orientation

discrimination is a distinct type of discrimination and is not

synonymous with sex discrimination.

As a preliminary matter, neither Hopkins nor any other

decision of the Supreme Court establishes an independent

60 No. 15-1720

cause of action for, or “doctrine” or “theory” of, “sex stereo-

typing.” 7 Hopkins held only that the presence of sex stereo-

typing by an employer “can certainly be evidence” of sex

discrimination; to prove her case, the plaintiff must always

prove that “the employer actually relied on her gender in

making its decision.” 490 U.S. at 251 (second emphasis

added).

It’s also often overlooked that the lead opinion in Hopkins

was a four-Justice plurality, not a majority opinion. Id. at 231.

Two Justices concurred in the judgment only, and they said

nothing about sex stereotyping as a “theory” of sex discrim-

ination. Id. at 258–61 (White, J., concurring in the judgment);

id. at 261–79 (O’Connor, J., concurring in the judgment).

Here’s another point that’s often missed: Although the facts

in Hopkins involved sex stereotyping, the actual legal issue

dealt with the allocation of burdens of proof on the element

of causation in a mixed-motives Title VII case. The plurality

opinion made that clear in its very first paragraph: “We

granted certiorari to resolve a conflict among the Courts of

Appeals concerning the respective burdens of proof of a

defendant and plaintiff in a suit under Title VII when it has

been shown that an employment decision resulted from a

mixture of legitimate and illegitimate motives.” Id. at 232.

The plurality devised a burden-shifting approach for use in

mixed-motive cases. Id. at 258. Justices White and O’Connor

concurred in the judgment, each filing a separate opinion

agreeing with the burden-shifting method but taking issue

with the plurality’s discussion of the substantive standard of

7 Some lower courts use the phrase “gender nonconformity” inter-

changeably with “sex stereotyping,” but the Supreme Court has never

used that term.

No. 15-1720 61

causation. Id. at 258–61 (White, J., concurring in the judg-

ment); id. at 261–79 (O’Connor, J., concurring in the judg-

ment).

Only a very short passage in the very long plurality opin-

ion actually addresses the subject of sex stereotyping. The

plurality simply accepted the district court’s factual finding

that sex stereotyping played a role in Price Waterhouse’s

decision to place Ann Hopkins’s bid for partnership on hold.

Id. at 236–37 (describing the trial judge’s factual findings); see

also id. at 251 (“As to the existence of sex stereotyping in this

case, we are not inclined to quarrel with the District Court’s

conclusion that a number of the partners’ comments showed

sex stereotyping at work.”). Regarding the legal significance

of sex stereotyping as evidence of sex discrimination, the

plurality had only this to say:

In saying that gender played a motivating part

in an employment decision, we mean that, if

we asked the employer at the moment of the

decision what its reasons were and if we re-

ceived a truthful response, one of those reasons

would be that the applicant or employee was a

woman. In the specific context of sex stereotyp-

ing, an employer who acts on the basis of a be-

lief that a woman cannot be aggressive, or that

she must not be, has acted on the basis of gen-

der.

….

As for the legal relevance of sex stereotyping,

we are beyond the day when an employer

could evaluate employees by assuming or in-

62 No. 15-1720

sisting that they matched the stereotype asso-

ciated with their group, for “‘[i]n forbidding

employers to discriminate against individuals

because of their sex, Congress intended to

strike at the entire spectrum of disparate

treatment of men and women resulting from

sex stereotypes.’” Los Angeles Dept. of Water and

Power v. Manhart, 435 U.S. 702, 707, n.13 (1978),

quoting Sprogis v. United Air Lines, Inc., 444 F.2d

1194, 1198 (7th Cir. 1971). An employer who

objects to aggressiveness in women but whose

positions require this trait places women in an

intolerable and impermissible catch 22; out of a

job if they behave aggressively and out of a job

if they do not. Title VII lifts women out of this

bind.

Id. at 250–51 (footnote omitted). Nothing in this passage

casts any doubt on the settled, long-understood distinction

between sex discrimination and sexual-orientation discrimi-

nation. 8

8 The two cases cited in this passage of the plurality opinion were

straightforward cases of sex discrimination. Manhart was a challenge to

an employer’s policy that required female employees to make larger

contributions to the employee pension fund than male employees. City of

L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 704–06 (1978). The

Court noted that the employer’s policy was not based on sex stereotypes

but rested on actuarial generalizations that “the parties accept as unques-

tionably true: Women, as a class, do live longer than men.” Id. at 707.

Still, the Court held that requiring women to pay more into the fund

than men was a plain case of sex discrimination. Id. at 707–10.

Sprogis was a challenge to an airline’s rule that female flight attend-

ants, but not male flight attendants, must be unmarried. Sprogis v. United

No. 15-1720 63

To put the matter plainly, heterosexuality is not a female

stereotype; it is not a male stereotype; it is not a sex-specific

stereotype at all. An employer who hires only heterosexual

employees is neither assuming nor insisting that his female

and male employees match a stereotype specific to their sex.

He is instead insisting that his employees match the domi-

nant sexual orientation regardless of their sex. Sexual-

orientation discrimination does not classify people according

to invidious or idiosyncratic male or female stereotypes. It

does not spring from a sex-specific bias at all.

The point is easy to see if we take the question posed by

the plurality opinion in Hopkins and map it onto this case.

Hively suspects that the real reason Ivy Tech rejected her

repeated applications for promotion is her sexual orienta-

tion. Assume for the moment that her suspicion is correct. If

we asked Ivy Tech “at the moment of the decision what its

reasons were and if we received a truthful response,” id. at

250, would it be reasonable to expect Ivy Tech to respond

that it rejected her applications because she is a woman? No.

If Ivy Tech responded truthfully, it would confess that its

decisions were based on Hively’s sexual orientation, not her

sex.

So it’s a serious mistake to think that Hopkins either sup-

ports or requires a new interpretation of Title VII that

equates sexual-orientation discrimination with sex discrimi-

nation. To the contrary, Hopkins does not even gesture in that

direction. If the lower-court decisions involving “sex stereo-

Airlines, Inc., 444 F.2d 1194, 1196 (7th Cir. 1971). This too was a straight-

forward case of sex discrimination. Id. at 1198 (holding that “it is clear

that United has contravened [Title VII] by applying one standard for

men and one for women”).

64 No. 15-1720

typing” are a confusing hodgepodge—and I agree that they

are—the confusion stems from an unfortunate tendency to

read Hopkins for more than it’s worth. That’s not a reason to

embed the confusion in circuit law.

C

Neither does Oncale compel or support today’s decision.

Oncale held only that same-sex sexual harassment may, in an

appropriate case, support a claim under Title VII provided

that it “meets the statutory requirements.” 523 U.S. at 79–80.

The Court reiterated that in all sex-discrimination cases,

including sexual-harassment cases, “[t]he critical issue,

Title VII’s text indicates, is whether members of one sex are

exposed to disadvantageous terms or conditions of employ-

ment to which members of the other sex are not exposed.”

Id. at 80 (quotation marks omitted).

The plaintiff in Oncale, a male roustabout on an oil plat-

form in the Gulf of Mexico, alleged that his male coworkers

regularly subjected him to “sex-related, humiliating” verbal

and physical harassment. Id. at 77. The lower courts dis-

missed his claim based on an approach that categorically

rejected same-sex harassment cases under Title VII. The

Supreme Court reversed, holding that “nothing in Title VII

necessarily bars a claim of discrimination ‘because of … sex’

merely because the plaintiff and the defendant (or the per-

son charged with acting on behalf of the defendant) are of

the same sex.” Id. at 79.

To sketch the circumstances in which evidence of same-

sex harassment might support a claim of sex discrimination,

the Court first explained how evidence of workplace har-

assment permits an inference of sex discrimination as a

No. 15-1720 65

general matter. The Court explained, for example, that in an

opposite-sex harassment case involving “explicit or implicit

proposals of sexual activity,” an inference of sex discrimina-

tion is easy to draw because “it is reasonable to assume those

proposals would not have been made to someone of the

same sex.” Id. at 80. But the same is not true in a case involv-

ing same-sex harassment unless the evidence shows that the

harasser is homosexual; only then would it be reasonable to

infer that the victim was targeted because of his sex. 9 Id.

The Court offered two other examples of conduct that

might support an inference of sex discrimination in a same-

sex harassment case. The first is when a harasser uses “such

sex-specific and derogatory terms” as to make it clear that he

“is motivated by general hostility to the presence of [mem-

bers of the same sex] in the workplace.” Id. The second is

when the plaintiff offers “direct comparative evidence about

how the alleged harasser treated members of both sexes in a

mixed-sex workplace.” Id. at 80–81. Because the record was

undeveloped on these points, the Court remanded for

further proceedings. Id. at 82.

9 Note that the Court’s focus is on the sexual orientation of the harasser,

not the sexual orientation or attributes of the harassment victim. Some

lower courts have missed this important point and mistakenly allowed

same-sex harassment cases to proceed to the extent that the victim

alleges he suffered harassment based on his supposed “gay behaviors.”

This has predictably drawn an objection that the law should not distin-

guish between claims of discrimination for “acting gay” and claims of

discrimination for “being gay.” Indeed it should not. On a proper

understanding of the limits of Hopkins and Oncale, neither claim is

actionable under Title VII. Both are claims of sexual-orientation discrimi-

nation, which is not covered by the statute.

66 No. 15-1720

In short, in authorizing claims of same-sex harassment as

a theoretical matter, the Court carefully tethered all sexual-

harassment claims to the statutory requirement that the

plaintiff prove discrimination “because of sex.” Nothing in

Oncale eroded the distinction between sex discrimination

and sexual-orientation discrimination or opened the door to

a new interpretation of Title VII.

Oncale was not a revolutionary decision. In contrast, to-

day’s decision by the en banc court works a profound trans-

formation of Title VII by any measure.

D

The majority also finds support for its decision in “the

backdrop of the Supreme Court’s decisions … in the area of

broader discrimination on the basis of sexual orientation,”

citing Romer v. Evans, 517 U.S. 620 (1996); Lawrence v. Texas,

539 U.S. 558 (2003); United States v. Windsor, 133 S. Ct. 2675

(2013); and Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Majori-

ty Op. at p. 19.

But the majority’s position is actually irreconcilable with

these cases. First, Lawrence was decided solely under the Due

Process Clause; it was not an equal-protection case. 539 U.S.

at 564. In the other cases, far from collapsing the well-

understood distinction between sex discrimination and

sexual-orientation discrimination, the Court actually pre-

served it. The Court assigned these two distinct forms of

discrimination to different analytical categories for purposes

of equal-protection scrutiny. If sex discrimination and

sexual-orientation discrimination were really one and the

same, then the Court would have applied the intermediate

standard of scrutiny that governs judicial review of laws that

No. 15-1720 67

classify people by sex. See United States v. Virginia, 518 U.S.

515, 531 (1996). It did not do so.

E

Finally, drawing especially on Obergefell, my colleagues

worry that adhering to the long-settled interpretation of

Title VII “creates ‘a paradoxical legal landscape in which a

person can be married on Saturday and then fired on

Monday for just that act.’” Majority Op. at p. 5 (quoting

Hively v. Ivy Tech Cmty. Coll., 830 F.3d 698, 714 (7th Cir.

2016)). The concern is understandable, but my colleagues

conflate the distinction between state action, which is subject

to constitutional limits, and private action, which is regulat-

ed by statute. The Due Process and Equal Protection Clauses

are constitutional restraints on government. Title VII is a

statutory restraint on employers. The legal regimes differ

accordingly. Any discrepancy is a matter for legislative, not

judicial, correction.

* * *

If Kimberly Hively was denied a job because of her sexu-

al orientation, she was treated unjustly. But Title VII does not

provide a remedy for this kind of discrimination. The argu-

ment that it should must be addressed to Congress.

IV

This brings me to my last point, which concerns the prin-

ciple of stare decisis. The general rule is that “stare decisis …

has ‘special force’” in the domain of statutory interpretation

“for ‘Congress remains free to alter what we have done.’”

John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 139

(2008) (quoting Patterson v. McLean Credit Union, 491 U.S.

164, 172–73 (1989)). Special force or no, the foundational

68 No. 15-1720

assumptions of the rule of law and due regard for the pru-

dential virtues of stability, reliability, and predictability

should inspire some caution here. A decision to upend

settled precedent “demands special justification.” Michigan v.

Bay Mills Indian Cmty., 134 S. Ct. 2024, 2036 (2014) (quoting

Arizona v. Rumsey, 467 U.S. 203, 212 (1984)). That “special

justification” must at least begin with a convincing case that

the challenged precedent is gravely wrong.

As I’ve explained, a convincing case has not been made.

If more is needed, consider for a moment the next step in

this litigation. When this case returns to the district court, it

will not matter whether the evidence shows that Ivy Tech

rejected Hively in favor of male applicants, female appli-

cants, or a combination of men and women. If the facts show

that Ivy Tech hired heterosexuals for the six full-time posi-

tions, then the community college may be found liable for

discriminating against Hively because of her sex. 10 That will be

so even if all six positions were filled by women. Try explaining

that to a jury.

* * *

In the end, today’s decision must be recognized for what

it is: a new form of Title VII liability based on imputed mo-

tive, not actual motive. The majority’s new rule—that sexual-

orientation discrimination = sex discrimination—imputes to

the employer a motive that is not, and need not be, present

in fact. Liability under this new “theory” of sex discrimina-

tion does not require the jury to find that the employer’s

decision was actually motivated by the plaintiff’s sex. That’s a

10 Unless, of course, Ivy Tech can show that Hively was less qualified

than the applicants who were hired.

No. 15-1720 69

necessary predicate for liability in all other sex-

discrimination cases, but not here. Discrimination “because

of sex” need not be found as a fact; instead, the court will

impute the statutorily forbidden motive to the employer if

the plaintiff proves discrimination “because of sexual orien-

tation.”

* * *

This brings me back to where I started. The court’s new

liability rule is entirely judge-made; it does not derive from

the text of Title VII in any meaningful sense. The court has

arrogated to itself the power to create a new protected

category under Title VII. Common-law liability rules may

judicially evolve in this way, 11 but statutory law is funda-

mentally different. Our constitutional structure requires us

to respect the difference.

It’s understandable that the court is impatient to protect

lesbians and gay men from workplace discrimination with-

out waiting for Congress to act. Legislative change is ardu-

ous and can be slow to come. But we’re not authorized to

amend Title VII by interpretation. The ordinary, reasonable,

and fair meaning of sex discrimination as that term is used

in Title VII does not include discrimination based on sexual

orientation, a wholly different kind of discrimination. Be-

cause Title VII does not by its terms prohibit sexual-

orientation discrimination, Hively’s case was properly

dismissed. I respectfully dissent.

11 Though the state supreme courts, not the federal courts, are empow-

ered to adjust common-law rights and remedies.